ppcfourthamendedandre128






                                                                                  Exhibit 10.1                                                                     EXECUTION VERSION                                                                                                         FOURTH AMENDED AND RESTATED CREDIT AGREEMENT                                   dated as of                                   July 20, 2018                                    among                     PILGRIM’S PRIDE CORPORATION         ,                               TO-RICOS, LTD.                                         and                       TO-RICOS DISTRIBUTION, LTD.      ,                                 as Borrowers ,                THE OTHER LOAN PARTIES PARTY HERETO            ,                       THE LENDERS PARTY HERETO        ,                                      and                                COBANK, ACB    ,                    as Administrative Agent and Collateral Agent  _____________________________________________________________________                                                                        COBANK, ACB    ,                            BARCLAYS BANK PLC,                       BMO CAPITAL MARKETS CORP.,           COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH,                                      and                         ROYAL BANK OF CANADA,                             as Joint Lead Arrangers                                                                       COBANK, ACB    ,                            BARCLAYS BANK PLC,                       BMO CAPITAL MARKETS CORP.,           COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH,                                      and                         ROYAL BANK OF CANADA,                                      as Joint Bookrunners                                                                        COBANK, ACB    ,                            BARCLAYS BANK PLC,                       BMO CAPITAL MARKETS CORP.,           COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH,                         ROYAL BANK OF CANADA,                                      and                    U.S. BANK NATIONAL ASSOCIATION,                           as Joint Syndication Agents                                                                       COBANK, ACB    ,                            BARCLAYS BANK PLC,                       BMO CAPITAL MARKETS CORP.,           COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH,                         ROYAL BANK OF CANADA,                                      and                    U.S. BANK NATIONAL ASSOCIATION,                          as Joint Documentation Agents                       





 






                          TABLE OF CONTENTS                                                                              Page   ARTICLE I DEFINITIONS .............................................................................................2        SECTION 1.01.     Defined Terms .....................................................................2        SECTION 1.02.     Classification of Loans and Borrowings ............................54         SECTION 1.03.     Terms Generally.................................................................55         SECTION 1.04.     Accounting Terms; GAAP .................................................55         SECTION 1.05.     Timing of Payment or Performance ...................................56   ARTICLE II THE CREDITS .........................................................................................56         SECTION 2.01.     Commitments .....................................................................56         SECTION 2.02.     Loans and Borrowings .......................................................56         SECTION 2.03.     Requests for Borrowings....................................................57         SECTION 2.04.     Protective Advances...........................................................58         SECTION 2.05.     Swingline Loans.................................................................59         SECTION 2.06.     Letters of Credit .................................................................60         SECTION 2.07.     Funding of Borrowings ......................................................65         SECTION 2.08.     Interest Elections ................................................................66         SECTION 2.09.     Termination and Reduction of Commitments....................67         SECTION 2.10.     Increase in Commitments. .................................................68         SECTION 2.11.     Repayment and Amortization of Loans; Evidence of                          Debt ....................................................................................70         SECTION 2.12.     Prepayment of Loans .........................................................71         SECTION 2.13.     Fees ....................................................................................72         SECTION 2.14.     Interest................................................................................74         SECTION 2.15.     Alternate Rate of Interest ...................................................74         SECTION 2.16.     Increased Costs ..................................................................76         SECTION 2.17.     Break Funding Payments ...................................................77         SECTION 2.18.     Taxes ..................................................................................78         SECTION 2.19.     Payments Generally; Allocation of Proceeds; Sharing of                          Set-offs ...............................................................................82         SECTION 2.20.     Mitigation Obligations; Replacement of Lenders ..............84         SECTION 2.21.     Defaulting Lenders.............................................................85         SECTION 2.22.     Returned Payments ............................................................89         SECTION 2.23.     Bermuda Obligations .........................................................89   ARTICLE III REPRESENTATIONS AND WARRANTIES .....................................89         SECTION 3.01.     Organization; Powers .........................................................89         SECTION 3.02.     Authorization; Enforceability ............................................89         SECTION 3.03.     Governmental Approvals; No Conflicts ............................90         SECTION 3.04.     Financial Condition; No Material Adverse Effect .............90         SECTION 3.05.     Properties ...........................................................................90         SECTION 3.06.     Flood Zones .......................................................................91         SECTION 3.07.     Litigation ............................................................................91         SECTION 3.08.     Compliance with Laws and Agreements ...........................91         SECTION 3.09.     Investment Company Status ..............................................92         SECTION 3.10.     Taxes ..................................................................................92                                       i    





 






                             TABLE OF CONTENTS                                      (cont’d)                                                                               Page        SECTION 3.11.     ERISA, Etc .........................................................................92         SECTION 3.12.     Disclosure ..........................................................................92         SECTION 3.13.     Material Agreements ..........................................................92         SECTION 3.14.     Solvency .............................................................................93         SECTION 3.15.     Insurance ............................................................................93         SECTION 3.16.     Capitalization and Subsidiaries ..........................................93         SECTION 3.17.     Security Interest in Collateral ............................................93         SECTION 3.18.     Employment Matters ..........................................................94         SECTION 3.19.     Regulation U; Use of Proceeds ..........................................94         SECTION 3.20.     Sanctions/Anti-Corruption Representations ......................94         SECTION 3.21.     Food Security Act ..............................................................94         SECTION 3.22.     No Default ..........................................................................95         SECTION 3.23.     Source of Repayments .......................................................95         SECTION 3.24.     Beneficial Ownership Certification ...................................95   ARTICLE IV CONDITIONS .........................................................................................95         SECTION 4.01.     Effective Date ....................................................................95         SECTION 4.02.     Each Credit Event ..............................................................98   ARTICLE V AFFIRMATIVE COVENANTS ..............................................................99         SECTION 5.01.     Financial Statements; Borrowing Base and Other                          Information ........................................................................99         SECTION 5.02.     Notices of Material Events...............................................101         SECTION 5.03.     Existence; Conduct of Business .......................................103         SECTION 5.04.     Payment of Obligations....................................................103         SECTION 5.05.     Maintenance of Properties ...............................................103         SECTION 5.06.     Books and Records; Inspection Rights ............................103         SECTION 5.07.     Compliance with Laws and Contractual Obligations ......104         SECTION 5.08.     Use of Proceeds................................................................104         SECTION 5.09.     Insurance ..........................................................................105         SECTION 5.10.     Casualty and Condemnation ............................................106         SECTION 5.11.     Appraisals ........................................................................106         SECTION 5.12.     Field Examinations ..........................................................106         SECTION 5.13.     Additional Collateral; Further Assurances .......................107         SECTION 5.14.     Source of Repayments .....................................................110         Post-Closing Covenants. ......................................................................................110   ARTICLE VI NEGATIVE COVENANTS .................................................................111         SECTION 6.01.     Indebtedness .....................................................................111         SECTION 6.02.     Liens .................................................................................115         SECTION 6.03.     Fundamental Changes; Change in Nature of Business ....118         SECTION 6.04.     Investments,  Loans, Advances, Guarantees and                          Acquisitions .....................................................................121         SECTION 6.05.     Asset Sales .......................................................................124         SECTION 6.06.     Sale and Leaseback Transactions .....................................126                                       ii    





 






                             TABLE OF CONTENTS                                      (cont’d)                                                                               Page        SECTION 6.07.     Swap Agreements ............................................................127         SECTION 6.08.     Restricted Payments; Certain Payments of Indebtedness                          and Management Fees......................................................127         SECTION 6.09.     Transactions with Affiliates .............................................129         SECTION 6.10.     Restrictive Agreements ....................................................131         SECTION 6.11.     Amendment of Material Documents ................................132         SECTION 6.12.     Capital Expenditures ........................................................132        SECTION 6.13.     Minimum Consolidated Tangible Net Worth ..................132         SECTION 6.14.     Change in Fiscal Year ......................................................132   ARTICLE VII EVENTS OF DEFAULT .....................................................................132  ARTICLE VIII ADMINISTRATIVE AGENT, ISSUING BANK, COLLATERAL,  AND AFFILIATES OF LENDERS .............................................................................136         SECTION 8.01.     Authorization and Action. ................................................136         SECTION 8.02.     Administrative Agent and its Affiliates. ..........................137         SECTION 8.03.     Duties ...............................................................................138         SECTION 8.04.     Administrative Agent’s Reliance, Etc..............................139         SECTION 8.05.     Sub-Agents .......................................................................140         SECTION 8.06.     Resignation. .....................................................................140         SECTION 8.07.     Lender Credit Decision ....................................................141         SECTION 8.08.     Other Agent Titles............................................................142         SECTION 8.09.     Agent May File Proofs of Claim; Bankruptcy Events .....142         SECTION 8.10.     Collateral ..........................................................................142         SECTION 8.11.     Issuing Bank.....................................................................143         SECTION 8.12.     Agency for Perfection ......................................................144         SECTION 8.13.     Affiliates of Lenders; Bank Product Providers ................144         Certain ERISA Matters. .......................................................................................145   ARTICLE IX MISCELLANEOUS ..............................................................................147         SECTION 9.01.     Notices .............................................................................147         SECTION 9.02.     Waivers; Amendments .....................................................149         SECTION 9.03.     Expenses; Indemnity; Damage Waiver ............................154         SECTION 9.04.     Successors and Assigns....................................................156         SECTION 9.05.     Survival ............................................................................160         SECTION 9.06.     Counterparts; Integration; Effectiveness ..........................161         SECTION 9.07.     Severability ......................................................................161         SECTION 9.08.     Right of Setoff..................................................................161         SECTION 9.09.     Governing Law; Jurisdiction; Consent to Service of                          Process .............................................................................162         SECTION 9.10.     WAIVER OF JURY TRIAL ............................................162         SECTION 9.11.     Headings ..........................................................................163         SECTION 9.12.     Confidentiality .................................................................163         SECTION 9.13.     Several Obligations; Nonreliance; Violation of Law.......164         SECTION 9.14.     Patriot Act ........................................................................164                                        iii    





 






                             TABLE OF CONTENTS                                      (cont’d)                                                                               Page        SECTION 9.15.     Disclosure ........................................................................165         SECTION 9.16.     Appointment for Perfection .............................................165         SECTION 9.17.     Interest Rate Limitation ...................................................165         SECTION 9.18.     WAIVERS OF FARM CREDIT RIGHTS ......................165         SECTION 9.19.     Bank Equity Interests .......................................................166         SECTION 9.20.     Amendment and Restatement of Original Credit                          Agreement; Confirmation of Existing Obligations ..........166   ARTICLE X U.S. GUARANTY ...................................................................................167         SECTION 10.01.    Guaranty ...........................................................................167         SECTION 10.02.    Guaranty of Payment .......................................................167         SECTION 10.03.    No Discharge or Diminishment of U.S. Guaranty ...........167         SECTION 10.04.    Defenses Waived .............................................................168         SECTION 10.05.    Rights of Subrogation ......................................................168         SECTION 10.06.    Reinstatement; Stay of Acceleration ................................169         SECTION 10.07.    Information ......................................................................169         SECTION 10.08.    Taxes ................................................................................169         SECTION 10.09.    Maximum Liability ..........................................................169         SECTION 10.10.    Contribution .....................................................................170         SECTION 10.11.    Liability Cumulative ........................................................170         SECTION 10.12.    Common Enterprise .........................................................170   ARTICLE XI THE BORROWER REPRESENTATIVE..........................................171         SECTION 11.01.    Appointment; Nature of Relationship ..............................171         SECTION 11.02.    Powers ..............................................................................171         SECTION 11.03.    Employment of Agents ....................................................171         SECTION 11.04.    Notices .............................................................................171         SECTION 11.05.    Successor Borrower Representative ................................171         SECTION 11.06.    Execution of Loan Documents; Borrowing Base                          Certificate .........................................................................171         SECTION 11.07.    Reporting..........................................................................172         SECTION 11.08.    Keepwell ..........................................................................172         SECTION 11.09.    Acknowledgement and Consent to Bail-In of EEA                          Financial Institutions ........................................................172                                           iv    





 






                             TABLE OF CONTENTS                                Schedules and Exhibits   Schedules:  Commitment Schedule  Schedule 1.01     Tax Sharing Agreements  Schedule 2.06     Existing Letters of Credit  Schedule 3.05(a)  Real Property  Schedule 3.05(b)  Intellectual Property  Schedule 3.06     Flood Zones  Schedule 3.07     Disclosed Matters  Schedule 3.15     Insurance  Schedule 3.16     Capitalization and Subsidiaries  Schedule 4.01(n)  Mortgaged Properties  Schedule 6.01(b)  Existing Indebtedness  Schedule 6.02(c)  Existing Liens  Schedule 6.04(b)  Existing Investments  Schedule 6.04(m)  Captive Insurance Company Investment Guidelines  Schedule 6.07     Commodity Price Risk Management Guidelines  Schedule 6.10     Existing Restrictions  Schedule 9.04     Voting Participants   Exhibits:  Exhibit A         Form of Borrowing Request  Exhibit B         Form of Issuance Request  Exhibit C         Form of Interest Election Request  Exhibit D         Form of Incremental Commitment Joinder Agreement  Exhibit E-1       Form of Revolving Note  Exhibit E-2       Form of Swingline Note  Exhibit E-3       Form of Term Note  Exhibit H         Form of Borrowing Base Certificate  Exhibit I-1       Form of U.S. Tax Compliance Certificate  Exhibit I-2       Form of U.S. Tax Compliance Certificate  Exhibit I-3       Form of U.S. Tax Compliance Certificate  Exhibit I-4       Form of U.S. Tax Compliance Certificate  Exhibit J         Form of Bank Product Provider Letter  Exhibit K         Form of Compliance Certificate  Exhibit L         Form of Assignment and Assumption  Exhibit M         Form of Joinder Agreement                                        v    





 






         FOURTH  AMENDED  AND  RESTATED  CREDIT  AGREEMENT,  dated  as  of  July  20, 2018 (as it may be amended, restated, amended and restated or otherwise modified from time  to  time,  this  “Agreement”),  among  PILGRIM’S  PRIDE  CORPORATION,  a  Delaware  corporation, TO-RICOS, LTD., a Bermuda company, and TO-RICOS DISTRIBUTION, LTD., a  Bermuda company, as Borrowers, the other Loan Parties party hereto, the Lenders party hereto,  and COBANK, ACB, as Administrative Agent and Collateral Agent.         WHEREAS, the Borrowers, the financial institutions party thereto as lenders (the “Original  Lenders”), and Rabobank, as administrative agent and collateral agent for the Original Lenders  and as a swingline lender and issuing bank thereunder, are parties to that certain Third Amended  and  Restated  Credit  Agreement,  dated  as  of  May  8,  2017  (the  “Original  Closing  Date”),  as  amended,  restated, supplemented,  extended, renewed or otherwise modified from time to time  prior to the date hereof (the “Original Credit Agreement”);         WHEREAS, the Borrowers, the  Lenders, and the Administrative Agent  have agreed to  amend and restate the Original Credit Agreement in its entirety as, and in accordance with and  subject to the terms and conditions, set forth herein;         WHEREAS, each of the Borrowers acknowledges and agrees that the security interests  granted to the Administrative Agent, pursuant to the Original Credit  Agreement  and the other  “Loan Documents” (as defined in the Original Credit Agreement), shall remain outstanding and in  full force and effect in accordance with the Original Credit Agreement, as modified herein, and  shall continue to secure the Obligations (as defined herein);         WHEREAS, the Borrowers, the Lenders and the Administrative Agent acknowledge and  agree that (a) the Obligations (as defined herein) represent, among other things, the amendment,  restatement, renewal, extension, consolidation and modification of the “Obligations” (as defined  in the Original Credit Agreement) arising in connection with the Original Credit Agreement and  other “Loan Documents” (as defined in the Original Credit Agreement) executed in connection  therewith, (b) the Borrowers, the Lenders, and the Administrative Agent intend that the Original  Credit Agreement and the other “Loan Documents” (as defined in the Original Credit Agreement)  executed  in  connection  therewith  and  the  collateral  pledged  thereunder  shall  secure,  without  interruption or impairment of any kind, all existing “Obligations” (as defined in the Original Credit  Agreement) under the Original Credit Agreement and the other “Loan Documents” (as defined in  the  Original  Credit  Agreement)  executed  in  connection  therewith  as  they  may  be  amended,  restated,  renewed,  extended,  consolidated  and  modified  hereunder,  together  with  all  other  obligations under this Agreement and under the other Loan Documents, and (c) all “Liens” (as  defined in the Original Credit Agreement) created by the Original Credit Agreement and the other  “Loan  Documents”  (as  defined  in  the  Original  Credit  Agreement)  executed  in  connection  therewith are hereby ratified, confirmed and continued;         WHEREAS, the Borrowers, the Lenders, and the Administrative Agent intend that (a) the  provisions of the Original Credit Agreement be hereby superseded and replaced by the provisions  hereof,  (b)  the  Notes  (as  defined  herein)  restate, renew,  extend,  consolidate,  amend,  modify,  replace, are substituted for and supersede in its entirety, but do not extinguish, the “Obligations”  (as defined in the Original Credit Agreement) evidenced by the “Notes” (as defined in the Original      





 






   Credit Agreement) issued pursuant to the Original Credit Agreement, and (c) by entering into and  performing their respective obligations hereunder, this transaction shall not constitute a novation;         NOW,  THEREFORE,  in  consideration  of  the  mutual  covenants  and  agreements  herein  contained, the parties hereto covenant and agree to amend and restate in its entirety the Original  Credit Agreement as follows:                                      ARTICLE I                                                                            DEFINITIONS          SECTION 1.01.  Defined Terms.  As used in this Agreement, the following terms have  the meanings specified below:         “2015 Senior Notes” means the 5.75% Senior Notes due 2025 issued by the Company on  March  11,  2015  in  an  original  principal  amount  of  $500,000,000  and  all  agreements  and  instruments evidencing or governing the obligations under such senior unsecured notes entered  into in connection therewith.         “2017 Senior Notes” means the 5.875% Senior Notes due 2027 issued by the Company on  September  29,  2017  in  an  original  principal  amount of  $600,000,000  and  all  agreements  and  instruments evidencing or governing the obligations under such senior unsecured notes entered  into in connection therewith.         “Account” has the meaning assigned to such term in the U.S. Security Agreement.         “Account Debtor” means any Person obligated on an Account.         “Additional Equity Interest Basket” means, as of any date, the difference of:               (a)   the  aggregate  Net  Proceeds  of  issuances  of  Equity  Interests  of,  or        contributions to, the Company, for the period from February 11, 2015 until such date;               minus                (b)   any amounts set forth in paragraph (a) above actually utilized on or prior to        such date for (i) Permitted Acquisitions, (ii) Investments pursuant to Section 6.04(t), (iii)        Restricted Payments utilizing amounts available pursuant to the Additional Equity Interest        Basket pursuant to Section 6.08(a)(viii), and (iv) payments or other distributions utilizing        amounts available pursuant to the Additional Equity Interest Basket pursuant to Section        6.08(b)(iii).         “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest  Period, an interest rate per annum equal to (a) the LIBO Rate for such Interest Period multiplied  by  (b) the Statutory Reserve Rate.         “Administrative  Agent”  means  CoBank,  in  its  capacity  as  administrative  agent  for  the  Lenders hereunder, and its successors and assigns in such capacity.                                         2     





 






         “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied  by the Administrative Agent.         “Affiliate”  means,  with  respect  to  a  specified  Person,  any  other  Person  that  possesses,  directly or indirectly, the power to direct or cause the direction of the management or policies of  the  Person  specified,  whether  through  the  ability  to  exercise  voting  power,  by  contract  or  otherwise.         “Agents” means, individually or collectively as the context may require, the Administrative  Agent and the Collateral Agent.         “Aggregate Credit Exposure” means, at any time, the aggregate Credit Exposure of all the  Lenders.         “Aggregate Revolving Exposure” means, at any time, the aggregate Revolving Exposure  of all the Revolving Lenders.         “Agreement” has the meaning assigned to such term in the preamble.         “Anti-Corruption  Laws”  means  the  laws,  rules,  and  regulations  of  the  jurisdictions  applicable to any Loan Party or its Subsidiaries from time to time concerning or relating to bribery  or corruption, including the U.S. Foreign Corrupt Practices Act of 1977, as amended.         “Anti-Terrorism  Laws”  means  any  laws,  regulations, or  orders  of  any  Governmental  Authority  of  the  United  States,  the  United  Nations,  United  Kingdom,  European  Union,  the  Netherlands or any other Governmental Authority applicable to the Company and its Subsidiaries  relating to terrorism financing or money laundering, including, but not limited to, the International  Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.), the Trading With the Enemy Act  (50 U.S.C. § 5 et seq.), the International Security Development and Cooperation Act (22 U.S.C. §  2349aa-9 et seq.), the Executive Order No. 13224 on Terrorist Financing, effective September 24,  2001,  the  Uniting  and  Strengthening  America  by  Providing  Appropriate  Tools  Required  to  Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (the “Patriot Act”), and any  rules or regulations promulgated pursuant to or under the authority of any of the foregoing.         “Applicable Percentage” means, with respect to any Lender, (a) with respect to Revolving  Loans, LC Exposure or Swingline Exposure, a percentage equal to a fraction the numerator of  which is such Lender’s Revolving Commitment and the denominator of which is the aggregate  Revolving  Commitments  (if  the  Revolving  Commitments  have  terminated  or  expired,  the  Applicable  Percentages  shall  be  determined  based  upon  such  Lender’s  share  of  the  Aggregate  Revolving Exposure at that time); provided that in the case of Section 2.21 when a Defaulting  Lender shall exist, any such Defaulting Lender’s Revolving Commitment shall be disregarded in  the calculation; (b) with respect to the Term Loans, a percentage equal to a fraction the numerator  of which is such Lender’s outstanding principal amount of the Term Loans and the denominator  of which is the aggregate outstanding amount of the Term Loans of all Term Lenders; and (c) with  respect to Protective Advances or with respect to the Aggregate Credit Exposure, a percentage  based upon such Lender’s share of the Aggregate Credit Exposure and the unused Commitments;                                          3     





 






   provided that in the case of Section 2.21 when a Defaulting Lender shall exist, any such Defaulting  Lender’s Credit Exposure shall be disregarded in the calculation.         “Applicable Rate” means (a) with respect to the period ending March 31, 2018, the rate  determined based upon the Leverage Ratio as set forth in the Compliance Certificate received by  the Administrative Agent pursuant to Section 5.01(c) for such period, which shall be: (i) with  respect to the Revolving Loans and Term Loans, a rate per annum equal to (A) 0.25%, in the case  of Base Rate Loans, and (B) 1.25% in the case of Eurodollar Loans, and (ii) with respect to the  commitment  fee  referred  to  below,  0.200%  per  annum and  (b)  thereafter,  as  of  any  date  of  determination, the following rates per annum, based upon the Leverage Ratio as set forth in the  most  recent  Compliance  Certificate  received  by  the Administrative  Agent  pursuant  to  Section  5.01(c):                                  Applicable Rate                                 for Eurodollar   Applicable Rate                                 Loans/Letter of   for Base Rate   Commitment          Leverage Ratio           Credit Fees        Loans            Fee    1.    ≥ 2.25:1.00                 2.75%            1.75%           0.350%   2.    < 2.25:1 but ≥ 1.75:1.00    2.25%            1.25%           0.300%   3.    < 1.75:1 but ≥ 1.25:1.00    1.75%            0.75%           0.250%   4.    < 1.25:1 but ≥ 0.75:1.00    1.50%            0.50%           0.250%   5.    < 0.75:1.00                 1.25%            0.25%           0.200%         “Approved  Fund”  means  any  Person  (other  than  a  natural  person)  that  is  engaged  in  making, purchasing, holding or investing in bank loans and similar extensions of credit in the  ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate  of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.         “Assignment and  Assumption” means  an  assignment and  assumption entered into by  a  Lender  and  an  assignee  (with  the  consent  of  any  party  whose  consent  is  required  by  Section 9.04(b)), and accepted by the Administrative Agent, in the form of Exhibit L or any other  form approved by the Administrative Agent.         “Availability” means, at any time, an amount equal to (a) the lesser of (i) the aggregate  Revolving  Commitments  and  (ii)  the  Borrowing  Base minus   (b)  the  Aggregate  Revolving  Exposure.         “Availability  Period”  means  the  period  from  and  including  the  Effective  Date  to  but  excluding the Maturity Date with respect to the Revolving Loans.         “Available Inventory Amount” means, as of any time it is to be determined, the sum of:               (a)   the lesser of (i) 65% of the Value of Eligible Inventory consisting of feed        grains,  prepaid  grain  in  transit,  feed  and  feed  ingredients,  dressed  broiler  chickens  and                                          4     





 






         commercial eggs and (ii) 85% multiplied by  the NOLV Percentage multiplied by  the Value        of  Eligible  Inventory  consisting  of  feed  grains,  prepaid  grain  in  transit,  feed  and        ingredients, dressed broiler chickens and commercial eggs; plus                (b)   85%  multiplied by  the NOLV Percentage multiplied by  the Value of Eligible        Inventory consisting of live broiler chickens; plus                (c)   the lesser of (i) 70% multiplied by  the difference of (A) the Value of Eligible        Inventory consisting of prepared food products minus  (B) Inventory Reserves and (ii) 85%        multiplied  by   the  NOLV  Percentage multiplied  by   the  Value  of  Eligible  Inventory        consisting of prepared food products; plus                (d)   the lesser of (i) 45% of the Value of Eligible Inventory consisting of breeder         hens, breeder cockerels, breeder pullets, commercial hens, commercial pullets and hatching         eggs and (ii) 85% multiplied by  the NOLV Percentage multiplied by  the Value of Eligible        Inventory consisting of breeder hens, breeder cockerels, breeder pullets, commercial hens,        commercial pullets and hatching eggs; plus                (e)   the  lesser  of  (i)  40%  of  the  Value  of  Eligible Inventory  consisting  of         vaccines on the farm and (ii) 85% multiplied by  the NOLV Percentage multiplied by  the        Value of Eligible Inventory consisting of vaccines on the farm.                The  Administrative  Agent  may,  in  its  Permitted  Discretion,  reduce  the  advance        rates  (including  the  NOLV  Percentage)  used  in  computing  the  Available  Inventory        Amount, with any such changes to be effective three Business Days after delivery of notice        thereof to the Borrower Representative and the Lenders.         “Available  Revolving  Commitment”  means,  at  any  time,  the  aggregate  Revolving  Commitments then in effect minus  the Aggregate Revolving Exposure.         “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.         “Bail-In  Legislation”  means,  with  respect  to  any  EEA  Member  Country  implementing  Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European  Union, the implementing law for such EEA Member Country from time to time which is described  in the EU Bail-In Legislation Schedule.         “Bank Equity Interests” has the meaning assigned to such term in Section 9.19.         “Bank Product” means any financial accommodation extended to any Loan Party by a Bank  Product Provider in connection with (a) Swap Agreements or (b) Banking Services.         “Bank Product Agreements” means those agreements entered into from time to time by a  Loan Party with a Bank Product Provider in connection with the obtaining of any of the Bank  Products.                                           5     





 






         “Bank Product Obligations” means all obligations, liabilities, reimbursement obligations,  fees, or expenses owing by the Loan Parties to any Bank Product Provider pursuant to or evidenced  by a Bank Product Agreement and irrespective of whether for the payment of money, whether  direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising.         “Bank Product Provider” means any Lender or any of its Affiliates (or any Person party to  a Bank Product Agreement with a Loan Party that was a Lender or an Affiliate of a Lender and a  party to such Bank Product Agreement immediately prior to the assignment of all of such Lender’s  Commitments and Loans hereunder pursuant to Section 2.20(b)); provided, however, that no such  Person (other than CoBank or its Affiliates) shall constitute a Bank Product Provider with respect  to a Bank Product unless and until the Administrative Agent shall have received a Bank Product  Provider  Letter Agreement from such Person  and with respect to the  applicable Bank Product  within 30 days after the provision of such Bank Product to a Loan Party, or, if such Bank Product  Agreement was entered into prior to the Effective Date or prior to the date on which such Bank  Product Provider or its Affiliate, as applicable, became a Lender under this Agreement, within 30  days after the Effective Date or 10 days after the date on which such Bank Product Provider or its  Affiliate, as applicable, first became a Lender under this Agreement, as applicable.         “Bank Product Provider Letter Agreement” means a letter agreement in substantially the  form of Exhibit J, or otherwise in form and substance reasonably satisfactory to the Administrative  Agent,  and  duly  executed  by  the  applicable  Bank  Product  Provider  and  the  Borrower  Representative, and delivered to the Administrative Agent.          “Banking Services” means each and any of the following bank services provided to any  Loan  Party  by  any  Lender  or  any  of  its  Affiliates:   (a)  credit  cards  for  commercial  customers  (including, without limitation, “commercial credit cards” and purchasing cards); (b) stored value  cards;  and  (c)  treasury  management  services  (including,  without  limitation,  controlled  disbursement,  automated  clearinghouse  transactions,  return  items  and  interstate  depository  network services).         “Banking Services Obligations” of the Loan Parties means any and all obligations of the  Loan  Parties,  whether  absolute  or  contingent  and  howsoever  and  whensoever  created,  arising,  evidenced  or  acquired  (including  all  renewals,  extensions  and  modifications  thereof  and  substitutions therefor) in connection with Banking Services.         “Banking Services Reserves” means all Reserves which the Administrative Agent from  time  to  time  establishes  in  its  Permitted  Discretion  for  Banking  Services  then  provided  or  outstanding.         “Bankruptcy Code” means the Bankruptcy Code in Title 11 of the United States Code, as  amended, modified, succeeded, or replaced from time to time.         “Base Rate” means, at any time, the greatest of (a) the Prime Rate at such time, (b) 1/2 of  1% in excess of the Federal Funds Effective Rate at such time, and (c) the Adjusted LIBO Rate  for a Eurodollar Loan with a one-month Interest Period commencing at such time plus  1.0%.  For  the purposes of this definition, the Adjusted LIBO Rate shall be determined using the Adjusted  LIBO Rate as otherwise determined by Administrative Agent in accordance with the definition of                                          6     





 






   “Adjusted LIBO Rate”, except that (i) if a given day is a Business Day, such determination shall  be made on such day (rather than two Business Days prior to the commencement of an Interest  Period) or (ii) if a given day is not a Business Day, the Adjusted LIBO Rate for such day shall be  the rate determined by Administrative Agent pursuant to preceding clause (i) for the most recent  Business Day preceding such day.  Any change in the Base Rate due to a change in the Prime Rate,  the Federal Funds Effective Rate, or such Adjusted LIBO Rate shall be effective as of the opening  of business on the day of such change in the Prime Rate, the Federal Funds Effective Rate, or such  Adjusted  LIBO  Rate,  respectively.   “Base  Rate”,  when  used  in  reference  to  any  Loan  or  Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing  interest at a rate determined by reference to the Base Rate.         “Beneficial Ownership Certification” means a certification regarding beneficial ownership  required by the Beneficial Ownership Regulation.         “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.         “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is  subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person  whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of  ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.         “Bermuda Borrowers” means, individually or collectively as the context may require, To- Ricos, To-Ricos Distribution and any other Persons organized under the laws of Bermuda from  time  to  time  becoming  Borrowers  hereunder  pursuant to  Section  9.02(e),  but  excluding  any  Persons  organized  under  the  laws  of  Bermuda  who  from  time  to  time  cease  to  be  Borrowers  hereunder pursuant to Section 9.02(f).         “Bermuda Guaranty” means that certain Guarantee Agreement dated as of February 11,  2015,  by  and  among  the  Borrowers  and  the  Administrative  Agent  (as  successor-in-interest  to  Rabobank as collateral agent), for the benefit of the Secured Parties, as ratified and reaffirmed by  the Borrowers on the Effective Date pursuant to the Reaffirmation Agreement.          “Bermuda Loan Guarantor” means, individually or collectively as the context may require,  each Person (other than any U.S. Loan Party) that guarantees the payment of, or delivers a security  agreement that secures the repayment of, the Bermuda Secured Obligations, in each case pursuant  to Section 5.13(c), or pursuant to Section 9.02(e), but excluding any Persons who from time to  time cease to be Loan Parties hereunder pursuant to Section 9.02(f).         “Bermuda Loan Parties” means, individually or collectively as the context may require, the  Bermuda Borrowers and the Bermuda Loan Guarantors.         “Bermuda Obligations” means all unpaid principal of and accrued and unpaid interest on  all Loans to the Bermuda Borrowers, all LC Exposure in respect of the Bermuda Borrowers, all  accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations of  the Bermuda Loan Parties to the Lenders or to any Lender, the Agents, any Issuing Bank with  respect to Letters of Credit of the Bermuda Borrowers or any indemnified party arising under the  Loan Documents.                                          7     





 






         “Bermuda Pledge Agreement” means that certain Share Charge Agreement dated as of  February 11, 2015, between the Company and the Administrative Agent (as successor-in-interest  to Rabobank as collateral agent), for the benefit of the Secured Parties, as ratified and reaffirmed  by the Company on the Effective Date pursuant to the Reaffirmation Agreement.         “Bermuda  Secured  Obligations”  means  (a)  all  Bermuda  Obligations,  and  (a)  all  Bank  Product Obligations of the Bermuda Loan Parties; provided, that the “Bank Product Obligations”  of  a  Bermuda  Loan  Party  shall  exclude  any  Excluded Swap  Obligations  with  respect  to  such  Bermuda Loan Party.         “Bermuda  Security  Agreement”  means  that  certain  Deed  of  Security  Assignment  and  Charge  dated  as  of  February  11,  2015,  by  and  among the  Bermuda  Borrowers  and  the  Administrative Agent (as successor-in-interest to Rabobank as collateral agent), for the benefit of  the Secured Parties, as ratified and reaffirmed by the Bermuda Borrowers on the Effective Date  pursuant to the Reaffirmation Agreement.         “Board” means the Board of Governors of the Federal Reserve System of the United States.         “Borrower” or “Borrowers” means, individually or collectively as the context may require,  the  Company,  the  Bermuda  Borrowers  and  any  other  Persons  from  time  to  time  becoming  Borrowers hereunder pursuant to Section 9.02(e), but excluding any Persons who from time to  time cease to be Borrowers hereunder pursuant to Section 9.02(f).         “Borrower  Representative”  means  the  Company,  in  its  capacity  as  contractual  representative of the Borrowers pursuant to Article XI.         “Borrowing” means (a) Revolving Loans of the same Type, made, converted or continued  on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in  effect; (b) a Term Loan made on the same date and, in the case of Eurodollar Loans, as to which a  single Interest Period is in effect; (c) a Swingline Loan; and (d) a Protective Advance.         “Borrowing Base” means, at any time:               (a)   the sum of (i) 90% multiplied  by the difference of (A) the Eligible Accounts        minus  (B) the Dilution Reserve, plus  (ii) the Available Inventory Amount, plus  (iii) the        aggregate amount of the Borrowers’ cash deposits in restricted accounts that are subject to        the sole dominion and control of the Administrative Agent pursuant to a Deposit Account        Control Agreement, plus  (iv) 90% multiplied  by the net liquidation value of the Borrowers’        commodity  brokerage  accounts  that  are  subject  to  a control  (or  similar)  agreement  in        accordance with the proviso to Section 6.02(p);               minus                (b)   the  sum  of  (i)  the  Rent  or  Collateral  Access  Reserves, plus   (ii)  the        outstanding amount of Secured Grower Payables that are more than 15 days past due, plus         (iii)  without  duplication  of  the  Reserves  included in  the  foregoing  components  of  the        Borrowing Base, other Reserves established by the Administrative Agent in its Permitted        Discretion.                                         8     





 






         Notwithstanding the foregoing, the aggregate amount of Availability under the Borrowing  Base attributable to the Bermuda Borrowers and the other Bermuda Loan Parties shall not exceed  $25,000,000.  The Administrative Agent may, in its Permitted Discretion, reduce the advance rates  set forth above (including the NOLV Percentage), adjust Reserves or reduce one or more of the  other elements used in computing the Borrowing Base, with any such changes to be effective three  Business Days after delivery of notice thereof to the Borrower Representative and the Lenders;  provided  that  the  Administrative  Agent  agrees  at  all  times  to  maintain  Reserves  for  Swap  Obligations  that  constitute  Secured  Obligations  (such  Reserves  not  to  exceed  the  aggregate  liability  of  the  Company  and  the  other  Loan  Parties  with  respect  to  such  Swap  Obligations).   Subject  to  the  preceding  sentence  and  Section  9.02,  the  Borrowing  Base  at  any  time  shall  be  determined  by  reference  to  the  most  recent  Borrowing  Base  Certificate  delivered  to  the  Administrative Agent pursuant to Section 5.01(f).         “Borrowing  Base  Certificate”  means  a  certificate,  signed  and  certified  as  accurate  and  complete  by  a  Financial  Officer  of  the  Borrower  Representative,  in  substantially  the  form  of  Exhibit H or another form which is acceptable to the Administrative Agent in its sole discretion.         “Borrowing  Base  Period”  means  any  period  (a)  commencing  only  when  Aggregate  Revolving  Exposure  on  any  date  is  equal  to  or  greater  than  an  amount  equal  to  65%  of  the  Revolving Commitments and (b) ending after Aggregate Revolving Exposure is lesser than an  amount equal to 65% of the Revolving Commitments,  for a period of 30 consecutive days.          “Borrowing  Request”  means  a  request,  in  substantially  the  form  of  Exhibit  A,  by  the  Borrower Representative for a Borrowing of Revolving Loans or Term Loans, in each case in  accordance with Section 2.03.         “Business  Day”  means  any  day  that  is  not  a  Saturday,  Sunday  or  other  day  on  which  commercial banks in New York City are authorized or required by law to remain closed; provided  that, when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude  any  day  on  which  banks  are  not  open  for  dealings  in  dollar  deposits  in  the  London  interbank  market.         “Capital  Expenditures”  means,  without  duplication, with  respect  to  any  period,  any  expenditure or commitment to expend money for any purchase or other acquisition of any asset  during such period which would be classified as a fixed or capital asset on a consolidated balance  sheet of the Company, excluding:               (a)   expenditures  of  the  proceeds  of  insurance  settlements,  condemnation        awards and other settlements described in paragraph (b) of the definition of “Prepayment        Event” that are reinvested in accordance with the proviso to Section 2.12(c);               (b)   expenditures that are accounted for as capital expenditures of such Person        and  that  have  actually  been  paid  for  by  a  third  party  (other  than  the  Company  or  any        Subsidiary thereof) and  for which neither the Company nor any Subsidiary thereof has        provided, or is required to provide or incur, directly or indirectly (whether or not contingent        upon the occurrence of any event or circumstance), any consideration, collateral security                                          9     





 






         or other obligation to such third party or any other Person (whether before, during or after        such period);               (c)   the book value of any asset owned by such Person prior to or during such        period to the extent that such book value is included as a capital expenditure during such        period as a result of such Person reusing or beginning to reuse such asset during such period        without  a  corresponding  cash  expenditure  actually  having  been  made  in  such  period;        provided that (i) any expenditure necessary in order to permit such asset to be reused shall        be  included  as  a  Capital  Expenditure  during  the  period  in  which  such  expenditure  is        actually made and (ii) such book value shall have been included in Capital Expenditures        when such asset was originally acquired; and               (d)   expenditures  that  are  accounted  for  as  Capital Expenditures  pursuant  to         transactions constituting Permitted Acquisitions.          “Capital Lease Obligations” of any Person means the obligations of such Person to pay  rent or other amounts under any lease of (or other arrangement conveying the right to use) real or  personal property, or a combination thereof, which obligations are required to be classified and  accounted for as capital leases on a consolidated balance sheet of such Person, and the amount of  such obligations shall be the capitalized amount thereof.         “Captive Insurance Company” means, collectively, (a) GK Insurance Company, organized  and licensed to provide insurance under the laws of the State of Vermont, (b) Mayflower Insurance  Company,  Ltd.,  organized  and  licensed  to  provide  insurance  under  the  laws  of  Bermuda,  and  (c) such other captive insurance companies that are reasonably acceptable to the Administrative  Agent, in each case which conducts no other business (nor suffers to exist any business) other than  providing insurance for the benefit of the Company and the Subsidiaries with respect to workmen’s  compensation, crime, general liability, auto liability, employee benefits, property risks and live  chicken inventory in accordance with Section 5.09 and reinsurance arrangements or customary  risk sharing or pooling arrangements with respect thereto.         “Cash Collateralize” means, to pledge and deposit with or deliver to the Administrative  Agent, for the benefit of one or more of the Issuing Banks or Lenders, as collateral for LC Exposure  or obligations of Lenders to fund participations in respect of the LC Exposure, cash or deposit  account balances or, if the Administrative Agent and each applicable Issuing Bank shall agree in  their sole discretion, other credit support, in each case pursuant to documentation in form and  substance  satisfactory  to  the  Administrative  Agent and  each  applicable  Issuing  Bank.   “Cash  Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such  cash collateral and other credit support.         “Change  in  Control”  means  (a)  the  acquisition  of  ownership,  directly  or  indirectly,  beneficially or of record, by any Person or group (within the meaning of the Securities Exchange  Act of 1934 and the rules of the SEC thereunder as in effect on the Effective Date) other than the  Parent Entity, of Equity Interests representing more than 50% of the aggregate ordinary voting  power represented by the issued and outstanding Equity Interests of the Company; (b) failure of  the Parent Entity to have the right, directly or indirectly, to designate a majority of the board of  directors of the Company; (c) occupation of a majority of the seats (other than vacant seats) on the                                         10    





 






   board of directors of the Company by Persons who were neither (i) nominated by the board of  directors of the Company nor (ii) appointed by directors so nominated; or (d) the Company shall  cease to own, directly or indirectly, free and clear of all Liens (other than Permitted Liens), the  outstanding  voting  Equity  Interests  of  any  Borrower  owned  on  a  fully  diluted  basis  by  the  Company on the Effective Date, or if later, on the date such Person became a Borrower.         “Change in Law” means (a) the adoption of any law, rule or regulation after the Effective  Date; (b) any change in any law, rule or regulation or in the interpretation or application thereof  by any Governmental Authority after the Effective Date; or (c) compliance by any Lender or any  Issuing Bank (or, for purposes of Section 2.16(b), by any lending office of such Lender or by such  Lender’s or such Issuing Bank’s holding company, if any) with any request, guideline or directive  (whether or not having the force of law) of any Governmental Authority made or issued after the  Effective Date; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank  Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives  thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives  promulgated  by  the  Bank  for  International  Settlements,  the  Basel  Committee  on  Banking  Supervision  (or  any  successor  or  similar  authority)  or  the  United  States  or  foreign  regulatory  authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in  Law”, regardless of the date enacted, adopted or issued.         “Charges” has the meaning assigned to such term in Section 9.17.         “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,  or the Loans comprising such Borrowing, are Revolving Loans, Term Loans, Swingline Loans or  Protective Advances.         “CoBank” means CoBank, ACB.          “Code” means the Internal Revenue Code of 1986, as amended from time to time.         “Collateral” means any and all real and personal property owned, leased or operated by a  Person covered by the Collateral Documents and any and all other real and personal property of  any Loan Party, now existing or hereafter acquired, that may at any time be subject to a Lien in  favor  of  the  Administrative  Agent,  on  behalf  of  the  Lender  Parties,  to  secure  the  Secured  Obligations.         “Collateral Access Agreement” has the meaning assigned to such term in the U.S. Security  Agreement, including any such agreement previously delivered by any Loan Party in connection  with the Original Credit Agreement and the U.S. Security Agreement.         “Collateral Agent” means CoBank, in its capacity as collateral agent hereunder, and each  of its successors and assigns in such capacity.         “Collateral Documents” means, collectively, the U.S. Security Agreement, the Bermuda  Pledge Agreement, the Bermuda Security Agreement, the Puerto Rico Security Agreement, each  Mortgage, each Collateral Access Agreement, each IP Security Agreement, each Deposit Account  Control Agreement, each Lock Box Agreement and each other document granting a Lien upon the  Collateral as security for payment of the Secured Obligations.                                         11    





 






         “Commercial LC Exposure” means, at any time, the sum of (a) the aggregate undrawn  amount of all outstanding Commercial Letters of Credit at such time, plus  (b) the aggregate amount  of  all  LC  Disbursements  relating  to  Commercial  Letters  of  Credit  that  have  not  yet  been  reimbursed by or on behalf of the Borrowers at such time.  The Commercial LC Exposure of any  Revolving Lender at any time shall be its Applicable Percentage of the aggregate Commercial LC  Exposure at such time.         “Commercial  Letter  of  Credit”  means  any  Letter  of  Credit  issued  for  the  purpose  of  providing  the  primary  payment  mechanism  in  connection  with  the  purchase  of  any  materials,  goods or services by a Borrower in the ordinary course of business of such Borrower.         “Commitment” means, with respect to each Lender, the sum of such Lender’s Revolving  Commitment  and  Term  Loan  Commitment,  together  with the  commitment  of  such  Lender  to  acquire participations in Protective Advances hereunder.  The initial amount of each Revolving  Lender’s and Term Lender’s Commitment is set forth on the Commitment Schedule, or in the  Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment,  as applicable.         “Commitment Schedule” means the Schedule attached hereto identified as such.         “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C.§ 1 et seq. ),  as amended from time to time, and any successor statute.         “Communications” has the meaning assigned to such term in Section 9.01(a).         “Company” means Pilgrim’s Pride Corporation, a Delaware corporation.         “Compliance Certificate” means a certificate of a Financial Officer of the Company, in  substantially the form of Exhibit K.         “Consolidated Tangible Net Worth” means, as of any date of determination, Shareholders’  Equity, plus  the outstanding principal amount of Permitted Subordinated Indebtedness on such  date, minus  Intangible Assets on such date.         “Consolidated Total Assets” means, on any date, the aggregate amount of assets of the  Company on a consolidated basis.         “Credit  Exposure”  means,  as  to  any  Lender  at  any  time,  the  sum  of  (a)  such  Lender’s  Revolving Exposure at such time, plus  (b) such Lender’s Term Exposure at such time, plus  (c) an  amount equal to such Lender’s Applicable Percentage, if any, of the aggregate principal amount  of Protective Advances outstanding at such time.         “Customer” means any Account Debtor of a Loan Party or its Subsidiary that has been  approved by the Administrative Agent (such approval not to be unreasonably withheld) for the  purposes of the sale of the Accounts owing by such Person to a Customer Factoring Program.         “Customer Factor” means any Person that has been approved by a Customer as a purchaser  of Accounts of such Customer under its Customer Factoring Program.                                         12    





 






         “Customer Factoring Program” means the program established by a Customer for suppliers  to such Customer for the limited recourse sale by such suppliers of such Customer’s Accounts at  the option of such suppliers, to a Customer Factor.         “Debtor  Relief  Laws”  means  the  Bankruptcy  Code,  and  all  other  liquidation,  conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,  receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other  applicable jurisdictions from time to time in effect.         “Default” means any event or condition which constitutes an Event of Default or which  upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.         “Defaulting Lender” means, subject to Section 2.21(c), any Lender that (a) has failed to (i)  fund all or any portion of its Loans within two Business Days of the date such Loans were required  to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower  Representative in writing that such failure is the result of such Lender’s determination that one or  more  conditions  precedent  to  funding  (each  of  which  conditions  precedent,  together  with  any  applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay  to the Administrative Agent, any Issuing Bank, any Swingline Lender or any other Lender any  other amount required to be paid by it hereunder (including in respect of its participation in Letters  of Credit or Swingline Loans) within two Business Days of the date when due, (b) has notified the  Borrower Representative, the Administrative Agent or any Issuing Bank or Swingline Lender in  writing that it does not intend to comply with its funding obligations hereunder, or has made a  public statement to that effect (unless such writing or public statement relates to such Lender’s  obligation  to  fund  a  Loan  hereunder  and  states  that  such  position  is  based  on  such  Lender’s  determination that a condition precedent to funding (which condition precedent, together with any  applicable default, shall be specifically identified in such writing or public statement) cannot be  satisfied), (c) has failed, within three Business Days after written request by the Administrative  Agent or the Borrower Representative, to confirm in writing to the Administrative Agent and the  Borrower Representative that it will comply with its prospective funding obligations hereunder  (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon  receipt  of  such  written  confirmation  by  the  Administrative  Agent  and  the  Borrower  Representative), or (d) has, or has a direct or indirect parent company that has, (i) become the  subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian,  conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged  with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance  Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii)  become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender  solely by virtue of (x) the ownership or acquisition of any equity interest in that Lender or any  direct  or  indirect  parent  company  thereof  by  a  Governmental  Authority  or  (y)  an  Undisclosed  Administration of such Lender, in any such case so long as such ownership interest does not result  in or provide such Lender with immunity from the jurisdiction of courts within the United States  or from the enforcement of judgments or writs of attachment on its assets or permit such Lender  (or  such  Governmental  Authority)  to  reject,  repudiate,  disavow  or  disaffirm  any  contracts  or  agreements made with such Lender.  Any determination by the Administrative Agent that a Lender  is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive  and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender                                         13    





 






   (subject to Section 2.21(c)) upon delivery of written notice of such determination to the Borrower  Representative, each Issuing Bank, each Swingline Lender and each Lender.         “Deposit Account Control Agreement” has the meaning assigned to such term in the U.S.  Security Agreement, including any such agreement previously delivered by any  Loan Party in  connection with the Original Credit Agreement.         “Dilution Factors” means, without duplication, with respect to any period, the aggregate  amount of all deductions, credit memos, returns, adjustments, allowances, bad debt write-offs and  other non-cash credits which are issued to reduce accounts receivable in a manner consistent with  current and historical accounting practices of the Borrowers.         “Dilution Ratio” means, at any date, the amount (expressed as a percentage) equal to (a)  the  aggregate  amount  of  the  applicable  Dilution  Factors  for  the  12  most  recently  ended  fiscal  months divided by  (b) total gross sales for the 12 most recently ended fiscal months.         “Dilution Reserve” means, at any date, the product of (a) the excess of (i) the applicable  Dilution Ratio on such date over  (ii) 5.00%, multiplied by  (b) the Eligible Accounts on such date.         “Disclosed  Matters”  means  the  actions,  suits  and  proceedings  and  the  environmental  matters disclosed in Schedule 3.07.         “Document” has the meaning assigned to such term in the U.S. Security Agreement.         “dollars” or “$” refers to lawful money of the United States.         “Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United  States, any State thereof or the District of Columbia.         “EBITDA” means, for any period, the sum of (a) Net Income (or net loss) for such period,  plus  (b) without duplication and solely to the extent deducted in determining Net Income (or net  loss) for such period, the sum of (i) Interest Expense for such period, (ii) provisions for Taxes  based on income, profits or capital for such period, including, without limitation, State, foreign,  franchise and similar Taxes, and Tax Distributions made by the Company on a consolidated basis  during such period, (iii) consolidated depreciation expense of the Company for such period, (iv)  consolidated amortization expense of the Company for such period, (v) consolidated Restructuring  Charges of the Company for such period, (vi) any extraordinary, unusual or non-recurring non- cash charges, expenses or losses for such period (but excluding any non-cash charges, expenses or  losses that relate to the write-down or write-off of Inventory), (vii) the amount of loss or discount  on sale of receivables, Securitization Assets and related assets to any Securitization Subsidiary in  connection  with  a  Qualified  Securitization  Facility,  (viii)  any  expenses  or  charges  (other  than  depreciation  or  amortization  expense)  related  to  any  Permitted  Investment  or  Permitted  Acquisition for such period, (ix) the amount of net cost savings and synergies projected by the  Company in good faith to be realized as a result of specified actions taken or to be taken prior to  or during such period (which cost savings or synergies shall be subject only to certification by  management of the Company and shall be calculated on a Pro Forma Basis as though such cost  savings or synergies had been realized on the first day of such period), net of the amount of actual  benefits realized during such period from such actions; provided that (A) such cost savings or                                         14    





 






   synergies are reasonably identifiable and factually supportable, (B) such actions have been taken  or are to be taken within 12 months after the date of determination to take such action, (C) no cost  savings or synergies shall be added pursuant to this clause (ix) to the extent duplicative of any  expenses or charges relating to such cost savings or revenue enhancements that are included in  clause (x) below with respect to such period and (D) the aggregate amount of addbacks made  pursuant to this clause (ix) and clause (x) below in any four Fiscal Quarter period shall not exceed  10% of EBITDA (prior to giving effect to such addbacks) for such four Fiscal Quarter period and  (x) business optimization expenses (including consolidation initiatives, severance costs and other  costs  relating  to  initiatives  aimed  at  profitability  improvement);  provided  that  the  aggregate  amount of addbacks made pursuant to this clause (x) and clause (ix) above in any  four Fiscal  Quarter period shall not exceed 10% of EBITDA (prior to giving effect to such addbacks) for such  four  Fiscal  Quarter  period, minus   (c)  without  duplication  and  solely  to  the  extent  included  in  determining Net Income, the sum of (i) any extraordinary, unusual or non-recurring income or  gains which were included in the calculation of Net Income (or net loss) for such period, and (ii)  cash  expenditures  incurred  during  such  period,  the effect  of  which  is  to  reduce  balance  sheet  provisions previously booked and treated as an extraordinary, unusual or non-recurring non-cash  expense, in each case determined in accordance with GAAP for such period.         “ECP  Loan  Guarantor”  means,  with  respect  to  any  transaction  under  a  Secured  Swap  Agreement, a Loan Guarantor that, at the time such transaction is entered into or, if later, when  such Loan Guarantor becomes a party hereto, is an “eligible contract participant” as defined in  Section  1a(18)  of  the  Commodity  Exchange  Act  (and  related  regulations  of  the  Commodities  Futures  Trading  Commission)  by  virtue  of  having  total  assets  exceeding  $10,000,000  and/or  satisfying  any  other  criteria  relevant  to  such  status  under  said  Section  1a(18)  (and  related  regulations).         “EEA Financial Institution” means (a) any credit institution or investment firm established  in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority,  (b) any entity established in an EEA Member Country which is a parent of an institution described  in  clause  (a)  of  this  definition,  or  (c)  any  financial  institution  established  in  an  EEA  Member  Country which is a subsidiary of an institution described in clause (a) or (b) of this definition and  is subject to consolidated supervision with its parent.         “EEA Member Country” means any of the member states of the European Union, Iceland,  Liechtenstein, and Norway.         “EEA  Resolution  Authority”  means  any  public  administrative  authority  or  any  Person  entrusted  with  public  administrative  authority  of  any  EEA  Member  Country  (including  any  delegee) having responsibility for the resolution of any EEA Financial Institution.         “Effective  Date”  means  the  date  on  which  the  conditions  set  forth  in  Section  4.01   are  satisfied or waived in writing by the Administrative Agent.         “Eligible  Accounts”  means,  at  any  time,  the  Accounts  of  the  Borrowers  and  the  Loan  Guarantors which the Administrative Agent determines in its Permitted Discretion are eligible as  the basis for the extension of Revolving Loans, Swingline Loans and the issuance of Letters of                                          15    





 






   Credit  hereunder.   Without  limiting  the  Administrative  Agent’s  discretion  provided  herein,  Eligible Accounts shall not include any Account:               (a)   which is not subject to a first priority perfected security interest in favor of        the Administrative Agent (for the benefit of the Secured Parties);               (b)   which  is  subject  to  any  Lien  other  than  (i)  a  Lien  in  favor  of  the        Administrative Agent (for the benefit of the Secured Parties), (ii) a Permitted Encumbrance        which does not have priority over the Lien in favor of the Administrative Agent (for the        benefit  of  the  Secured  Parties)  or  (iii)  a  Lien  in respect  of  a  Secured  Grower  Payable;        provided that Accounts shall not be deemed ineligible in respect of Liens arising under        PACA,  PSA  or  other  similar  Requirements  of  Law  to  the  extent  that  a  Reserve  is        maintained in respect of rights of sellers of livestock, poultry and perishable agricultural        commodities thereunder;               (c)   which is unpaid more than 61 days after the date of the original invoice        therefor, or which has been written off the books of such Borrower or Loan Guarantor or        otherwise designated as uncollectible;               (d)   which  is  owing  by  an  Account  Debtor  for  which  more  than  50%  of  the        Accounts owing from such Account Debtor and its Affiliates (in the case of Affiliates,        solely to the extent that any Loan Party has knowledge, after due inquiry, that such Persons        are Affiliates of such Account Debtor) are ineligible pursuant to paragraph (c) above;               (e)   which is owing by an Account Debtor to the extent the aggregate amount of        Accounts owing from such Account Debtor and its Affiliates (in the case of Affiliates,        solely to the extent that any Loan Party has knowledge, after due inquiry, that such Persons        are  Affiliates  of  such  Account  Debtor)  to  all  the  Borrowers  and  the  Loan  Guarantors        exceeds 15% (or 20%, if Wal-Mart is such Account Debtor and Wal-Mart’s securities are        rated BBB- or better by S&P or Baa3 or better by Moody’s at the time of determination)        of  the  aggregate  amount  of  Eligible  Accounts  of  all  the  Borrowers  and  the  Loan        Guarantors;               (f)   with  respect  to  which  any  (i)  covenant  has  been  breached  or        (ii) representation or warranty is not true and correct in all material respects, in each case        to the extent contained in this Agreement or any Security Agreement; provided that each        such representation and warranty shall be true and correct in all respects to the extent it is        already qualified by a materiality standard;               (g)   which (i) does not arise from the sale of goods or performance of services        in  the  ordinary  course  of  business;  (ii)  is  not  evidenced  by  an  invoice  or  other        documentation reasonably satisfactory to the Administrative Agent which has been sent to        the  Account  Debtor;  (iii)  represents  a  progress  billing;  (iv)  is  contingent  upon  such        Borrower’s or Loan Guarantor’s completion of any further performance; (v) represents a        sale on a bill-and-hold, guaranteed sale, sale-and-return, sale on approval, consignment,        cash-on-delivery  or  any  other  repurchase  or  return basis;  (vi)  relates  to  payments  of                                          16    





 






               interest; or (vii) has been sold or transferred, or purported to have been sold or transferred,  under a Customer Factoring Program;         (h)   for which the goods giving rise to such Account have not been shipped to   the Account Debtor or for which the services giving rise to such Account have not been   performed by such Borrower or Loan Guarantor or if such Account was invoiced more   than once;          (i)   to the extent any check or other instrument of payment has been returned   uncollected for any reason;          (j)   which is owed by an Account Debtor which has (i) applied for, suffered, or   consented to the appointment of any receiver, custodian, trustee, or liquidator of its assets;   (ii)  has  had  possession  of  all  or  a  material  part  of  its  property  taken  by  any  receiver,   custodian, trustee or liquidator; (iii) filed, or had filed against it, any request or petition for   liquidation, reorganization, arrangement,  adjustment of debts,  adjudication as bankrupt,   winding-up, or voluntary or involuntary case under any state or Federal bankruptcy laws;   (iv) has admitted in writing its inability, or is generally unable to, pay its debts as they   become due; (v) become insolvent; or (vi) ceased operation of its business;          (k)   which is payable by any Account Debtor which has sold all or substantially   all  of  its  assets,  to  the  extent  that  any  Loan  Party  has  or  should  reasonably  have  had   knowledge thereof;          (l)   which is owed by an Account Debtor which (i) does not maintain its chief   executive office in (A) the United States (including Puerto Rico), or (B) solely with respect   to Account Debtors of the Bermuda Borrowers, Bermuda; or (ii) is not organized under the   laws  of  (A)  the  U.S.,  any  state  of  the  U.S.  (including  Puerto  Rico)  or  the  District  of   Columbia,  or  (B)  solely  with  respect  to  Account  Debtors  of  the  Bermuda  Borrowers,   Bermuda, unless, in either case, such Account is backed by a Letter of Credit reasonably   acceptable  to  the  Administrative  Agent  which  is  in the  possession  of,  assigned  to  and   directly drawable by the Administrative Agent; provided that notwithstanding the failure  of  such  Borrower  or  Loan  Guarantor  to  deliver  to  the  Administrative  Agent  any  such  Letters of Credit with respect to such Accounts, such Accounts in an aggregate amount not  to exceed $30,000,000 at any time shall constitute Eligible Accounts (provided, further,  that such Borrower or Loan Guarantor shall promptly deliver to the Administrative Agent  possession of any such Letters of Credit upon the request of the Administrative Agent that  is exercised in its Permitted Discretion);         (m)   which is payable in any currency other than U.S. dollars;         (n)   which is owed by (i) the government (or any department, agency, public  corporation,  or  instrumentality  thereof)  of  any  country  other  than  the  United  States  (including Puerto Rico), unless such Account is backed by a Letter of Credit reasonably  acceptable  to  the  Administrative  Agent  which  is  in the  possession  of,  assigned  to  and  directly drawable by the Administrative Agent; provided that notwithstanding the failure  of  such  Borrower  or  Loan  Guarantor  to  deliver  to  the  Administrative  Agent  any  such                                    17                





 






               Letters of Credit with respect to such Accounts, such Accounts in an aggregate amount not  to exceed $30,000,000 at any time shall constitute Eligible Accounts (provided, further,  that such Borrower or Loan Guarantor shall promptly deliver to the Administrative Agent  any such Letters of Credit upon the request of the Administrative Agent that is exercised  in its Permitted Discretion); or (ii) the government of the U.S., or any department, agency,  public corporation or instrumentality thereof, unless the Federal Assignment of Claims Act  of 1940 (31 U.S.C. § 3727 et seq. and 41 U.S.C. § 15 et seq.), has been complied with to  the Administrative Agent’s reasonable satisfaction;          (o)   which is owed by any director, officer, employee or Affiliate of any Loan  Party;         (p)   which  is  owed  by  an  Account  Debtor  or  any  Affiliate  of  such  Account  Debtor (in the case of Affiliates, solely to the extent that any Loan Party has knowledge,  after due inquiry, that such Persons are Affiliates of such Account Debtor) to which any  Loan Party is indebted, but only to the extent of such indebtedness or is subject to any  security, deposit, progress payment, retainage or other similar advance made by or for the  benefit of an Account Debtor, in each case to the extent thereof;         (q)   which  is  subject  to  (i)  any  contra-receivable  (including  any  adjustment  pursuant to a cost-plus arrangement) or allowance for bad debt, but only to the extent of  any  such  contra-receivable  or  allowance;  or  (ii)  any  counterclaim,  deduction,  defense,  setoff or dispute but only to the extent of any such counterclaim, deduction, defense, setoff  or dispute;         (r)   which is evidenced by any promissory note, chattel paper or instrument;         (s)   which is owed by an Account Debtor located in the States of New Jersey,  Minnesota, West Virginia or any other jurisdiction which requires filing of a “Notice of  Business Activities Report” or other similar report in order to permit any Borrower or Loan  Guarantor to which such Account is owed to seek judicial enforcement in such jurisdiction  of payment of such Account, unless such Borrower or Loan Guarantor (i) has qualified to  do business in New Jersey, Minnesota, West Virginia or such other States, (ii) has filed a  Notice  of  Business  Activities  Report  with  the  applicable  division  of  taxation,  the  department of revenue or with such other State offices, as appropriate, for the then-current  year, (iii) is exempt from such filing requirement or (iv) is otherwise not required to make  such filing pursuant to Requirements of Law; provided that such Accounts shall be Eligible  Accounts, notwithstanding the failure to comply with clauses (i) through (iv) above, unless  such Borrower or Loan Guarantor fails to make any such filing promptly following (A) the  occurrence and during the continuance of any Event of Default or (B) a request therefor  made  by  the  Administrative  Agent  in  the  exercise  of  its  Permitted  Discretion  or  the  Required Lenders, at any time that (1) any Default shall have occurred and be continuing  or (2) Availability during a Borrowing Base Period shall be less than $100,000,000;          (t)  with  respect  to  which  such  Borrower  or  Loan  Guarantor  has  made  any  agreement  with  the  Account  Debtor  for  any  reduction  thereof,  other  than  reductions,  discounts and adjustments given in the ordinary course of business, or any Account which                                   18                





 






         was partially paid and such Borrower or Loan Guarantor created a new receivable for the        unpaid portion of such Account;               (u)   which does not comply in all material respects with Requirements of Law        and regulations, whether Federal, state or local, including without limitation the Federal        Consumer Credit Protection Act, the Federal Truth in Lending Act and Regulation Z of the        Board;               (v)   which is for goods that have been sold under a purchase order or pursuant         to  the  terms  of  a  contract  or  other  agreement  or  understanding  (written  or  oral)  that         indicates or purports that any Person other than such Borrower or Loan Guarantor has or         has had an ownership interest in such goods, or which indicates any party other than such         Borrower or Loan Guarantor as payee or remittance party; or                (w)   which the Administrative Agent determines, in each case in its Permitted         Discretion, may not be paid by reason of the Account Debtor’s inability to pay or which         the Administrative Agent otherwise determines is unacceptable for any reason whatsoever.          In  the  event  that  an  outstanding  Account  with  a  face  amount  equal  to  or  greater  than   $5,000,000 which was previously an Eligible Account ceases to be an Eligible Account hereunder,   as  measured  from  the  immediately  preceding  Borrowing  Base  Certificate  delivered  to  the   Administrative Agent, the Borrower Representative shall notify the Administrative Agent thereof   on  and  at  the  time  of  submission  to  the  Administrative  Agent  of  the  next  Borrowing  Base   Certificate.  In determining the amount of an Eligible Account, the face amount of an Account   may, in the Administrative Agent’s Permitted Discretion, be reduced by, without duplication, to   the extent not reflected in such face amount, (i) the amount of all accrued and actual discounts,   claims, credits or credits pending, promotional program allowances, price adjustments, finance   charges or other allowances (including any amount that such Borrower or Loan Guarantor may be   obligated to rebate to an Account Debtor pursuant to the terms of any agreement or understanding   (written or oral)); and (ii) the aggregate amount of all cash received in respect of such Account but   not  yet  applied  by  such  Borrower  or  Loan  Guarantor to  reduce  the  amount  of  such  Account.    Standards  of  eligibility  may  be  made  more  restrictive  from  time  to  time  solely  by  the   Administrative Agent in the exercise of its Permitted Discretion, with any such changes to be   effective three Business Days after delivery of notice thereof to the Borrower Representative.  With   respect to any Letter of Credit delivered by such Borrower or Loan Guarantor to the Administrative   Agent pursuant to paragraphs (l) and (n) above, the Administrative Agent shall make drawings  under such Letter of Credit promptly following a request therefor by the Borrower Representative.         “Eligible  Incremental  Lender”  means,  with  respect  to  any  Incremental  Commitment,  a  prospective  Lender  that  would  meet  the  qualifications  to  be  an  assignee  set  forth  in  Sections 9.04(b)(i) and (b)(ii)(C) (subject to such consents, if any, that may be required pursuant  to Section 9.04(b)(i)).         “Eligible  Inventory”  means,  at  any  time,  the  Inventory  of  the  Borrowers  and  the  Loan  Guarantors which the Administrative Agent determines in its Permitted Discretion is eligible as  the basis for the extension of Revolving Loans, Swingline Loans and the issuance of Letters of                                          19    





 






   Credit  hereunder.   Without  limiting  the  Administrative  Agent’s  discretion  provided  herein,  Eligible Inventory shall not include any Inventory:               (a)   which  does  not  consist  solely  of  feed  grains,  grain  in  transit,  feed,  feed        ingredients,  live  and  dressed  broiler  chickens,  commercial  eggs,  breeder  hens,  breeder        cockerels, breeder pullets, hatching eggs, commercial hens, commercial pullets, prepared        food products and vaccines on the farm;               (b)   which  is  not  subject  to  a  first  priority  perfected  Lien  in  favor  of  the        Administrative Agent (for the benefit of the Secured Parties);               (c)   which  is  subject  to  any  Lien  other  than  (i)  a  Lien  in  favor  of  the        Administrative Agent (for the benefit of the Secured Parties), (ii) a Permitted Encumbrance        which does not have priority over the Lien in favor of the Administrative Agent (for the        benefit  of  the  Secured  Parties)  or  (iii)  a  Lien  in respect  of  a  Secured  Grower  Payable;        provided that Inventory shall not be deemed ineligible in respect of Liens arising under        PACA,  PSA  or  other  similar  Requirements  of  Law  to  the  extent  that  a  Reserve  is        maintained in respect of rights of sellers of livestock, poultry and perishable agricultural        commodities thereunder               (d)   which is, in the Administrative Agent’s Permitted Discretion, slow moving,        obsolete, unmerchantable, defective, used, unfit for sale or unacceptable due to age, type,        category and /or quantity;               (e)   with  respect  to  which  any  (i)  covenant  has  been  breached  or  (ii)        representation or warranty is not true and correct in all material respects, in each case to        the extent contained in this Agreement or any Security Agreement; provided that each such        representation and warranty shall be true and correct in all respects to the extent it is already        qualified by a materiality standard;               (f)   in which any Person other than such Borrower or Loan Guarantor shall (i)         have any direct or indirect ownership, interest or title to such Inventory or (ii) be indicated         on any purchase order or invoice with respect to such Inventory as having or purporting to         have an interest therein;                (g)   which constitutes bill-and-hold goods, goods that are returned or goods held         on consignment;                (h)   which is not located in the United States (including Puerto Rico) or, solely         with respect to Inventory of the Bermuda Borrowers, Bermuda, or is in transit with a carrier         from vendors and suppliers; provided that Inventory consisting of grain in transit in the        United  States  from  vendors  and  suppliers  may  be  included  as  eligible  pursuant  to  this        paragraph (h) if either  (i) (A) the Administrative Agent shall have  received (1)  access,        during  normal  business  hours  and  at  other  times  reasonably  requested  by  the        Administrative Agent, to a true and correct copy of the bill of lading and other shipping        documents for such Inventory; (2) evidence of satisfactory casualty insurance naming the        Administrative  Agent  as  loss  payee  and  otherwise  covering  such  risks  as  the                                          20    





 






               Administrative  Agent  may  reasonably  request;  (3)  confirmation  that  the  applicable  Borrower or Loan Guarantor has paid for the goods; and (4) if the bill of lading is (x) non- negotiable, a duly executed Collateral Access Agreement from the applicable carrier of  such Inventory, or (y) negotiable, confirmation that the bill is issued in the name of such  Borrower or Loan Guarantor and consigned to the order of the Administrative Agent, and  an acceptable  agreement has been  executed with such Borrower’s or  Loan Guarantor’s  carrier,  in  which  the  carrier  agrees  that  it  holds the  negotiable  bill  as  agent  for  the  Administrative Agent and has granted the Administrative Agent access to the Inventory;  (B) the carrier is not an Affiliate of the applicable vendor or supplier; and (C) the carrier is  not an Affiliate of any Borrower or Loan Guarantor; or (ii) a Rent or Collateral Access  Reserve has been established in an amount determined by the Administrative Agent in its  Permitted  Discretion  in  accordance  with  the  definition  of  “Rent  or  Collateral  Access  Reserve”;         (i)   which  consists  of  display  items,  packing  or  shipping  materials,  manufacturing supplies, replacement parts or cooking ingredients;         (j)   other than Inventory permitted to be included under paragraph (h) above,  which is located in any location leased by such Borrower or Loan Guarantor unless (i) the  lessor has delivered to the Administrative Agent a Collateral Access Agreement or (ii) a  Rent or Collateral Access Reserve has been established in an amount determined by the  Administrative Agent in its Permitted Discretion in accordance with the definition of “Rent  or Collateral Access Reserve”;         (k)   other than Inventory permitted to be included under paragraph (h) above,  which  is  located  in  any  third  party  location  (including  any  warehouse)  or  is  in  the  possession of a bailee (other than a third party processor), in each case which is not an  independent contract grower (provided that Inventory located with, or in the possession of,  an independent contract grower shall be excluded as Eligible Inventory unless such grower  has  entered  into  an  agreement  which  includes  a  provision  granting  reasonable  access,  during the continuance of any Event of Default, to the Administrative Agent to the property  of any such contract grower where any such Inventory is located), and is not evidenced by  a Document (other than bills of lading to the extent permitted pursuant to paragraph (h)  above), unless (i) such third party or bailee has delivered to the Administrative Agent a  Collateral Access Agreement and such other documentation as the Administrative Agent  may require in its Permitted Discretion or (ii) an appropriate Rent or Collateral Access  Reserve has been established by the Administrative Agent in its Permitted Discretion;          (l)  other than Inventory permitted to be included under paragraph (h) or (k)  above, which is at a third party location or outside processor, or is in-transit to or from such  third party location or outside processor;         (m)   which is the subject of a consignment by such Borrower or Loan Guarantor  as consignor;         (n)   which  contains  or  bears  any  intellectual  property  rights  licensed  to  such  Borrower or Loan Guarantor unless the Administrative Agent is reasonably satisfied that                                   21                





 






         it  may  sell  or  otherwise  dispose  of  such  Inventory on  satisfactory  terms  without        (i) infringing the rights of such licensor, (ii) violating any contract with such licensor or        (iii) incurring any liability with respect to payment of royalties other than royalties incurred        pursuant to sale of such Inventory under the current licensing agreement;                (o)   which  is  not  reflected  in  a  current  perpetual  inventory  report,  or  other        inventory  report  that  is  reasonably  acceptable  to  the  Administrative  Agent,  of  such        Borrower or Loan Guarantor;               (p)   which does not conform in all material respects to all standards imposed by        any applicable Governmental Authority;               (q)   for which reclamation rights have been asserted by the seller; or               (r)   which  the  Administrative  Agent  otherwise  determines,  in  its  Permitted        Discretion, is unacceptable for any reason whatsoever.         In the event that Inventory with a fair market value equal to or greater than $5,000,000  which has not been sold and was previously Eligible Inventory ceases to be Eligible Inventory  hereunder, as measured from the immediately preceding Borrowing Base Certificate delivered to  the  Administrative  Agent,  the  Borrower  Representative  shall  notify  the  Administrative  Agent  thereof on and at the time of submission to the Administrative Agent of the next Borrowing Base  Certificate.  Standards of eligibility may be made more restrictive from time to time solely by the  Administrative Agent in the exercise of its Permitted Discretion, with any such changes to be  effective three Business Days after delivery of notice thereof to the Borrower Representative.         “Environmental Laws” means all applicable laws, rules, regulations, codes, ordinances,  orders,  rules  of  common  law,  decrees,  judgments,  injunctions,  notices  or  binding  agreements  issued, promulgated or entered into by any Governmental Authority, relating in any way to the  environment, preservation or reclamation of natural resources, worker health and safety, or the  management, release or threatened release of any Hazardous Material in the environment.         “Environmental  Liability”  means  any  liability,  contingent  or  otherwise  (including  any  liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any  Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) any violation of  any Environmental Law; (b) the generation, use, handling, transportation, storage, treatment or  disposal of any Hazardous Materials; (c) exposure to any Hazardous Materials; (d) the release or  threatened release of any Hazardous Materials into the environment; or (e) any contract, agreement  or other consensual arrangement pursuant to which liability is assumed or imposed with respect to  any of the foregoing.         “Equity  Interests”  means  shares  of  capital  stock,  partnership  interests,  membership  interests in a limited liability company, beneficial interests in a trust or other ownership interests  in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or  acquire any such equity or other ownership interest.         “ERISA” means the Employee Retirement Income Security Act of 1974.                                          22    





 






         “ERISA Affiliate” means any trade or business (whether or not incorporated) that, together  with a Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely  for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer  under Section 414 of the Code.         “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or  the regulations issued thereunder with respect to a Plan (other than a reportable event for which  the 30-day notice period is extended or the report is waived); (b) the failure to make contributions  to a Plan for any plan year that, in the aggregate, at least equal the minimum required contribution  determined under Section 412 of the Code, Section 430 of the Code or Section 303 of ERISA for  the  Plan  for  the  plan  year;  (c)  the  existence  with respect  to  any  Multiemployer  Plan  of  an  “accumulated  funding  deficiency”  (as  defined  in  Section  431  of  the  Code  or  Section  304  of  ERISA), whether or not waived; (d) the filing pursuant to Section 412(c) of the Code or Section  302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to  any Plan; (e) the incurrence by any Borrower or any of its ERISA Affiliates of any liability under  Title IV of ERISA with respect to the termination of any Plan; (f) the receipt by any Borrower or  any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention  to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (g) the incurrence by  any Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or  partial withdrawal from any Plan or Multiemployer Plan; or (h) the receipt by any Borrower or  any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Borrower  or  any  ERISA  Affiliate  of  any  notice,  concerning  the  imposition  of Withdrawal  Liability  or  a  determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of  Title IV of ERISA.         “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published  by the Loan Market Association (or any successor Person), as in effect from time to time.         “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such  Loan,  or  the  Loans  comprising  such  Borrowing,  are  accruing  interest  at  a  rate  determined  by  reference to the Adjusted LIBO Rate.         “Event of Default” has the meaning assigned to such term in Article VII.         “Excluded Swap Obligation” means, with respect to any Loan Guarantor, any obligations  under a Secured Swap Agreement if, and to the extent that, all or a portion of the Guarantee of  such Loan Guarantor of, or the grant under a Loan Document by such Loan Guarantor of a security  interest  to  secure,  such  obligations  (or  any  Guarantee  thereof)  is  or  becomes  illegal  under  the  Commodity Exchange Act (or the application or official interpretation thereof) by virtue of such  Loan Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined  in the Commodity Exchange Act (determined after giving effect to Section 11.08) at the time of  the Guarantee of such Loan Guarantor, or grant by such Loan Guarantor of a security interest,  becomes effective with respect to such obligations.         “Excluded  Taxes”  means  any  of  the  following  Taxes  imposed  on  or  with  respect  to  a  Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed  on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes,                                         23    





 






   in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having  its  principal  office  or,  in  the  case  of  any  Lender,  its  applicable  lending  office  located  in,  the  jurisdiction  imposing  such  Tax  (or  any  political  subdivision  thereof)  or  (ii)  that  are  Other  Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts  payable to or for the account of such Lender with respect to an applicable interest in a Loan or  Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest  in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under  Section 2.20) or (ii) such Lender changes its lending office, except in each case to the extent that,  pursuant to Section 2.18, amounts with respect to such Taxes were payable either to such Lender's  assignor immediately before such Lender became a party hereto or to such Lender immediately  before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply  with Section 2.18(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.          “Excluded Transactions” is defined in Section 6.09(c)(v).         “Farm  Credit  System  Institution”  means  any  farm  credit  bank,  any  Federal  land  bank  association,  any  production  credit  association,  the  banks  for  cooperatives  and  such  other  institutions as may be a part of the Farm Credit System and chartered by and subject to regulation  by the Farm Credit Administration.         “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement  (or any amended or successor version that is substantively comparable and not materially more  onerous to comply with), any current or future regulations or official interpretations thereof and  any agreement entered into pursuant to Section 1471(b)(1) of the Code.         “Federal Funds Effective Rate” means, for any day, the weighted average of the rates on  overnight federal funds transactions with members of the Federal Reserve System, as published  on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate  is not so published for any day that is a Business Day, the average of the quotations for such day  for such transactions received by the Administrative Agent from three federal funds brokers of  recognized standing selected by it; provided the “Federal Funds Effective Rate” shall in no event  be less than zero.         “Fee  Letter”  means  that  certain  Fee  Letter  dated  June  27,  2018,  from  CoBank  to  the  Company.         “FEMA” means the Federal Emergency Management Agency.         “Financial  Officer”  means  the  chief  financial  officer,  principal  accounting  officer,  treasurer, vice president and assistant to the treasurer and chief financial officer, or controller (or  other officer having similar duties) of a Borrower.         “First-Tier Foreign DRE” means any Foreign DRE that is owned directly, or indirectly  through one or more Foreign DREs, by the Company or a Domestic Subsidiary.         “First-Tier Foreign Subsidiary” means any Foreign Subsidiary owned directly by one or  more of the Company or its Domestic Subsidiaries, or the First-Tier Foreign DREs.                                          24    





 






         “Fiscal Quarter” means each of the four fiscal quarters of a Fiscal Year, each of which shall  end on a Sunday and shall consist of 13 or 14 weeks, as appropriate with respect to such Fiscal  Year.         “Fiscal Year” means the 52- or 53-week fiscal year of the Company ending on the last  Sunday in December.         “Flood Insurance Acts” means, collectively, (a) the National Flood Insurance Act of 1968  as now or hereafter in effect or any successor statute thereto, (b) the Flood Disaster Protection Act  of  1973  as  now  or  hereafter  in  effect  or  any  successor  statue  thereto,  (c)  the  National  Flood  Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (d)  the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute  thereto and (e) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in  effect or any successor statute thereto.         “Foreign DRE” means a Foreign Subsidiary that for U.S. Federal income tax purposes is  classified as a partnership or that is “disregarded as an entity separate from its owner” (within the  meaning of Treas. Reg. §301.7701-2), but not any such Foreign Subsidiary whose assets consist  solely of stock of a “controlled foreign corporation” (within the meaning of Section 957(a) of the  Code).         “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction other  than the United States, each State thereof or the District of Columbia.          “Foreign  Subsidiary”  means  each  Subsidiary  of  the  Company  that  is  not  a  Domestic  Subsidiary.         “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to  any  Issuing  Bank,  such  Defaulting  Lender’s  Applicable  Percentage  of  the  outstanding  LC  Exposure with respect to Letters of Credit issued by such Issuing Bank other than LC Exposure as  to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders  or Cash Collateralized in accordance with the terms hereof, and (b) with respect to any Swingline  Lender,  such  Defaulting  Lender’s  Applicable  Percentage  of  Swingline  Exposure  other  than  Swingline  Exposure  as  to  which  such  Defaulting  Lender’s  participation  obligation  has  been  reallocated to other Lenders.         “FSA” means the Food Security Act of 1985, 7 U.S.C. Section 1631 et  seq .         “Fully Satisfied” or “Full Satisfaction” means, as of any date, that on or before such date:               (a)   with  respect  to  the  Loans  and  Letters  of  Credit:  (i)  the  principal  of  and        interest accrued to such date on the Loans (other than the contingent LC Exposure) shall        have  been  paid  in  full  in  cash,  (ii)  all  fees,  expenses,  and  other  amounts  then  due  and        payable (other than the contingent LC Exposure and other contingent amounts for which a        claim has not been made) shall have been paid in full in cash, (iii) the Commitments shall        have expired or irrevocably been terminated, and (iv) the contingent LC Exposure, if any,        shall have been secured by: (A) the grant of a first-priority, perfected Lien on cash in an        amount at least equal to 105% of the amount of such LC Exposure or other collateral which                                         25    





 






         is acceptable to Issuing Bank in its sole discretion or (B) the issuance of a “back-to-back”        letter  of  credit  in  form  and  substance  acceptable  to  Issuing  Bank  with  an  original  face        amount at least equal to 105% of the amount of such LC Exposure and issued by an issuing        bank satisfactory to Issuing Bank in its sole discretion; and                (b)   with respect to the Bank Product Obligations: (i) all termination payments,        fees, expenses, and other amounts then due and payable under the related Bank Product        Agreements shall have been paid in full in cash, and (ii) all contingent amounts (other than        contingent indemnification obligations for which no claim has been asserted) which could        be payable under the related Bank Product Agreements shall have been secured by: (A) the        grant of a first-priority, perfected Lien on cash in an amount at least equal to 105% of the        amount of such contingent amounts or other collateral which is acceptable to the applicable        Bank  Product  Provider  or  (B)  the  issuance  of  a  letter  of  credit  in  form  and  substance        acceptable to the applicable Bank Product Provider and in an amount at least equal to 105%        of the amount of such contingent obligations and issued by an issuing bank reasonably        satisfactory to such applicable Bank Product Provider; provided the amount of such Bank        Product Obligations shall be determined in accordance with Section 8.13.         “Funding Accounts” means those deposit accounts of the Borrowers to which the Lenders  are authorized to transfer the proceeds of any Borrowings requested or authorized pursuant to this  Agreement.         “GAAP” means generally accepted accounting principles in the United States.         “Governmental Authority” means the government of the United States or any other nation,  or  any  political  subdivision  thereof,  whether  state  or  local,  and  any  agency,  authority,  instrumentality,  regulatory  body,  court,  central  bank,  or  other  entity  exercising  executive,  legislative, judicial, taxing, regulatory, or administrative powers or functions of or pertaining to  government including any supra-national bodies (such as the European Union or the European  Central Bank).         “Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or  otherwise,  of  the  guarantor  guaranteeing  or  having the  economic  effect  of  guaranteeing  any  Indebtedness  or  other  obligation  of  any  other  Person  (the  “primary  obligor”)  in  any  manner,  whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a)  to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness  or other obligation or to purchase (or to advance or supply funds for the purchase of) any security  for the payment thereof; (b) to purchase or lease property, securities or services for the purpose of  assuring the owner of such Indebtedness or other obligation of the payment thereof; (c) to maintain  working capital, equity capital or any other financial statement condition or liquidity of the primary  obligor so as to enable the primary obligor to pay such Indebtedness or other obligation; or (d) as  an  account  party  in  respect  of  any  letter  of  credit  or  letter  of  guaranty  issued  to  support  such  Indebtedness or obligation; provided that the term “Guarantee” shall not include endorsements for  collection or deposit in the ordinary course of business.         “Guaranteed Obligations” has the meaning assigned to such term in Section 10.01.                                          26    





 






         “Hazardous  Materials”  means  all  explosive  or  radioactive  substances  or  wastes  and  all  hazardous  or  toxic  substances,  wastes  or  other  pollutants,  including  petroleum  or  petroleum  distillates,  asbestos  or  asbestos  containing  materials,  polychlorinated  biphenyls,  radon  gas,  infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to  any Environmental Law.         “Improvements” means, with respect to any Mortgaged Property, all buildings, structures  and other improvements now or hereafter existing, erected or placed on or under the Mortgaged  Property, or in any way used in connection with the use, enjoyment, occupancy or operation of  such  Mortgaged  Property  or  any  portion  thereof,  and  all  fixtures  of  every  kind  and  nature  whatsoever  now  or  hereafter  owned  by  any  of  the  Borrowers  or  the  Subsidiaries  and  used  or  procured for use in connection with such Mortgaged Property.         “Incremental Commitment Joinder Agreement” has the meaning assigned to such term in  Section 2.10(c).         “Incremental  Commitment  Request”  has  the  meaning  assigned  to  such  term  in  Section 2.10(b).         “Incremental  Commitments”  means,  individually  or  collectively  as  the  context  may  require, Incremental Revolving Commitments and Incremental Term Commitments.         “Incremental  Revolving  Commitments”  has  the  meaning  assigned  to  such  term  in  Section 2.10(a).         “Incremental  Term  Commitments”  has  the  meaning  assigned  to  such  term  in  Section 2.10(a).         “Indebtedness” of any Person means, without duplication:               (a)   all obligations of such Person (i) for borrowed money or (ii) with respect to        deposits or advances of any kind, in each case owed by such Person to a third Person;               (b)   all  obligations  of  such  Person  evidenced  by  bonds,  debentures,  notes  or         similar instruments;                (c)   all obligations of such Person under conditional sale or other title retention         agreements relating to property acquired by such Person;                (d)   all obligations of such Person in respect of the deferred purchase price of         property or services;                (e)   all Indebtedness of others secured by (or, if all conditions thereto have been         satisfied, for which the holder of such Indebtedness has a contingent right to be secured         by)  any  Lien  on  property  owned  or  acquired  by  such Person,  whether  or  not  the         Indebtedness secured thereby has been assumed; provided that the amount of Indebtedness        of any Person pursuant to this paragraph (e) shall be deemed to equal the lesser of (i) the                                          27    





 






         aggregate unpaid amount of such Indebtedness secured by such Lien and (ii) the fair market        value of the property encumbered thereby as determined by such Person in good faith;               (f)   all Guarantees by such Person of Indebtedness of others;               (g)   all Capital Lease Obligations of such Person;               (h)   the principal components of all obligations, contingent or otherwise, of such        Person as an account party in respect of letters of credit and letters of guaranty;               (i)   the principal components of all obligations, contingent or otherwise, of such        Person in respect of bankers’ acceptances;               (j)   obligations  under  any  liquidated  earn  out,  to  the  extent  shown  in  the        “Liabilities” section of the consolidated balance sheet of the Company; and               (k)   any other Off-Balance Sheet Liability.         The  Indebtedness  of  any  Person  shall  include  the  Indebtedness  of  any  other  Person  (including any partnership in which such Person is a general partner) to the extent such Person is  liable therefor as a result of such Person’s ownership interest in or other relationship with such  entity, except to the extent the terms of such Indebtedness provide that such Person is not liable  therefor.  Indebtedness shall exclude (i) accrued expenses and accounts and trade payables incurred  in the ordinary course of business, (ii) liabilities with respect to Intercompany IRBs, (iii) reserves  for deferred income taxes, (iv) endorsements for collection or deposit in the ordinary course of  business and (v) any other indebtedness or portion thereof with respect to which and to the extent  the  trustee  or  other  applicable  depository  in  respect  of  such  indebtedness  holds  cash  or  cash  equivalents  in  an  amount  sufficient  to  repay  the  principal,  and  accrued  interest  on,  such  indebtedness, and the foregoing shall constitute a redemption or a complete defeasance of such  indebtedness pursuant to the applicable agreement governing such indebtedness.         “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with  respect to any payment made by or on account of any obligation of a Loan Party under any Loan  Document and (b) to the extent not otherwise described in (a), Other Taxes.         “Indemnitee” has the meaning assigned to such term in Section 9.03(b).         “Information” has the meaning assigned to such term in Section 9.12.         “Intangible  Assets”  means  assets  of  the  Company  on a  consolidated  basis  that  are  considered to be intangible assets under GAAP, including customer lists, goodwill, copyrights,  trade names, trademarks, patents, franchises, licenses, unamortized deferred charges, unamortized  debt discount and capitalized research and development costs.         “Intercompany IRBs” means any industrial revenue bonds, notes, debentures or similar  instruments issued by a Governmental Authority on behalf of the Company or a Subsidiary that  are (a) owned exclusively by the Company or a Subsidiary and (b) subordinated to the repayment  of the Secured Obligations on terms reasonably satisfactory to the Administrative Agent.                                         28    





 






         “Interest Election Request” means a request, in substantially the form of Exhibit C, by the  Borrower Representative to convert or continue a Borrowing, in each case in accordance with  Section 2.08.         “Interest Expense” means, with reference to any period, total interest expense (including  that attributable to Capital Lease Obligations required to be capitalized in accordance with GAAP,  the amortization of debt discounts, the amortization of all fees payable in connection with the  incurrence of Indebtedness to the extent included in interest expense and capitalized interest) of  the Company on a consolidated basis for such period with respect to all outstanding Indebtedness  of the Company on a consolidated basis (including all commissions, discounts and other fees and  charges owed with respect to letters of credit and bankers’ acceptance financing and net costs  under Swap Agreements in respect of interest rates to the extent such net costs are allocable to  such period), all of the foregoing calculated on a consolidated basis for the Company for such  period.         “Interest Payment Date” means (a)  with respect  to any  Base Rate  Loan  (including  any  Swingline Loan), (i) the second Business Day of each April, July, October and January of each  year, and (ii) the Maturity Date; and (b) with respect to any Eurodollar Loan, (i) the last day of the  Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a  Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior  to the last day of such Interest Period that occurs at intervals of three months’ duration after the  first day of such Interest Period and (ii) the Maturity Date.         “Interest Period” means with respect to any Eurodollar Borrowing, the period commencing  on the date of such Borrowing and ending on the numerically corresponding day in the calendar  month that is one, two, three or six months thereafter, as the Borrower Representative may elect;  provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest  Period  shall  be  extended  to  the  next  succeeding  Business  Day  unless  such  next  succeeding  Business Day would fall in the next calendar month, in which case such Interest Period shall end  on  the  next  preceding  Business  Day;  and  (b)  any  Interest  Period  that  commences  on  the  last  Business Day of a calendar month (or on a day for which there is no numerically corresponding  day in the last calendar month of such Interest Period) shall end on the last Business Day of the  last calendar month of such Interest Period.  For purposes hereof, the date of a Borrowing initially  shall be the date on which such Borrowing is made and thereafter shall be the effective date of the  most recent conversion or continuation of such Borrowing.         “Inventory” has the meaning assigned to such term in the U.S. Security Agreement.         “Inventory Reserves” shall mean reserves allocable to Eligible Inventory determined on a  consolidated basis in accordance with GAAP and any other reserve as deemed appropriate by the  Administrative Agent in its Permitted Discretion from time to time.         “Investment”  by  any  Person  in  any  other  Person  means  (a)  any  direct  or  indirect  loan,  advance or other extension of credit or capital contribution to or for the account of such other  Person (by means of any  transfer of cash or other property to  any Person or any  payment  for  property or services for the account or use of any Person, or otherwise); (b) any direct or indirect  purchase or other acquisition of any Equity Interests, bond, note, debenture or other debt or equity                                         29    





 






   security or evidence of Indebtedness, or any other ownership interest (including the purchase price  of any option, warrant or any other right to acquire any of the foregoing), issued by such other  Person, whether or not such acquisition is from such or any other Person; (c) any direct or indirect  payment by such Person on a Guarantee of any obligation of or for the account of such other Person  or any direct or indirect issuance by such Person of such a Guarantee (provided that for purposes  of  Section  6.04,  payments  under  Guarantees  not  exceeding  the  amount  of  the  Investment  attributable to the issuance of such Guarantee will not be deemed to result in an increase in the  amount of such Investment); (d) any purchase or other acquisition (in one transaction or a series  of transactions) of all or substantially all assets of another Person or any assets of any other Person  constituting a division or business unit (in each case, whether through purchase of assets, merger  or otherwise); or (e) any other investment of cash or other property by such Person in or for the  account  of  such  other  Person.   Any  repurchase  by  a Borrower  of  its  own  Equity  Interests  or  Indebtedness shall not constitute an Investment for purposes of this Agreement.  The amount of  any Investment shall be the original principal or capital amount thereof less all returns of principal  or  equity  thereon  (and  without  adjustment  by  reason  of  the  financial  condition  of  such  other  Person) and shall, if made by the transfer or exchange of property other than cash, be deemed to  have been made in an original principal or capital amount equal to the fair market value of such  property at the time of such transfer or exchange.  In addition, any determination of the amount of  an Investment shall include all cash and non-cash consideration paid by or on behalf of such Person  or any of its subsidiaries in connection with such Investment, including the fair market value of all  Equity  Interests issued or transferred to the sellers thereof, all indemnities, earnouts  and other  contingent payment obligations of such Person set forth in the “Liabilities” section of the balance  sheet of such Person, and the aggregate amounts paid or to be paid under noncompete, consulting  and similar agreements (other than agreements relating to the provision of services on terms at  least as favorable to the Company or the Subsidiaries as would have been obtained if negotiated  on an arms’-length basis with a third Person) with the sellers thereof, and all assumptions of Total  Indebtedness in connection therewith.         “IP  Security  Agreements”  means  any  patent  security agreement,  trademark  security  agreement, copyright security agreement or other agreement which conveys or evidences a Lien  in favor of the Administrative Agent, for the benefit of the Secured Parties, on intellectual property  of a Loan Party, including any such agreement delivered in connection with the Original Credit  Agreement and/or U.S. Security Agreement and, in each case, any amendment, modification or  supplement thereto.         “Issuance  Request”  means  a  request,  in  substantially  the  form  of  Exhibit  B,  by  the  Borrower Representative for the issuance of a Letter of Credit.         “Issuing  Banks”  means,  individually  or  collectively,  CoBank  and  any  other  Lender  proposed by the Borrower Representative that (i) agrees in its sole discretion to act as an Issuing  Bank and (ii) is reasonably acceptable to the Administrative Agent, each in its capacity as an issuer  of  Letters  of  Credit  hereunder,  and  its  successors and  assigns  in  such  capacity  as  provided  in  Section 2.06(i).  Each such Issuing Bank, may, in its sole discretion, arrange for one or more Letters  of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank”  shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.         “Joinder Agreement” has the meaning assigned to such term in Section 5.13(a).                                         30    





 






         “LC Collateral Account” means, individually or collectively as the context may require,  the U.S. LC Collateral Account and the Non-U.S. LC Collateral Account.         “LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of  Credit.         “LC  Exposure”  means,  at  any  time,  the  sum  of  the  Commercial  LC  Exposure  and  the  Standby  LC  Exposure.   The  LC  Exposure  of  any  Revolving  Lender  at  any  time  shall  be  its  Applicable Percentage of the aggregate LC Exposure at such time.         “Lead  Arrangers”  means  CoBank,  Barclays  Bank  PLC,  BMO  Capital  Markets  Corp,  Rabobank and Royal Bank of Canada, in their capacities as joint lead arrangers hereunder, and  their successors and assigns in such capacity.          “Lender Parties” means, individually or collectively as the context may require, the Agents,  the Lenders and the Issuing Banks.         “Lenders” means the Persons (other than the Borrowers) that are parties to this Agreement  on the Effective Date and any other Person that shall have become a party hereto pursuant to an  Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant  to an Assignment and Assumption.  Unless the context otherwise requires, the term “Lenders”  includes the Swingline Lender.         “Letter  of  Credit”  means  any  Commercial  Letter  of  Credit  or  Standby  Letter  of  Credit  issued pursuant to this Agreement.         “Leverage Ratio” means, on any date, the ratio of (a) Senior Indebtedness on such date,  minus   the  aggregate  amount  of  cash  and  Permitted  Investments  of  the  Company  and  its  Subsidiaries on such date to (b) EBITDA for the period of four consecutive Fiscal Quarters then  most recently ended.         “LIBO  Rate”  means,  with  respect  to  any  Borrowing  for  any  Interest  Period,  a  rate  per  annum  equal  to  the  London  interbank  offered  rate  as  administered  by  the  ICE  Benchmark  Administration (or any other Person that takes over the administration of such rate) for deposits in  dollars  with  a  term  equivalent  to  such  Interest  Period  as  reported  by  Bloomberg  Information  Services  (or  any  successor  or  substitute  service  comparable  thereto,  as  determined  by  the  Administrative Agent from time to time, that provides quotations of interest rates applicable to  dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, two  Business Days prior to the commencement of such Interest Period (provided that in no event shall  such rate be less than zero).           “LIBOR Replacement Rate” has the meaning assigned to such term in Section 2.15(b).         “LIBOR Scheduled Unavailability Date” has the meaning assigned to such term in Section  2.15(b).         “Lien”  means,  with  respect  to  any  asset,  (a)  any  mortgage,  deed  of  trust,  lien,  pledge,  hypothecation, encumbrance, charge or security interest in, on or of such asset; (b) the interest of                                         31    





 






   a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement  (or any financing lease having substantially the same economic effect as any of the foregoing)  relating to such asset; and (c) in the case of securities, any purchase option, call or similar right of  a third party with respect to such securities (it being understood that a purchase and sale agreement  or similar agreement in respect of Equity Interests shall not be considered a purchase option, call  or similar right of a third party for purposes of this clause (c)).         “Loan Documents” means this Agreement, any Notes issued pursuant to this Agreement,  any  Letters  of  Credit  applications,  the  Collateral Documents,  the  U.S.  Guaranty,  the  Bermuda  Guaranty,  any  Subordination  Agreement,  the  Fee  Letter,  the  Reaffirmation  Agreement  and  all  other agreements, instruments, documents and certificates identified in or entered into pursuant to  Section 4.01 or the other terms of this Agreement, in each case executed by or on behalf of any  Loan Party and delivered to, or in favor of, the Administrative Agent or any other Lender Party in  connection with any of the foregoing agreements, instruments and documents.         “Loan Guarantor” means (a) with respect to the U.S. Secured Obligations, each U.S. Loan  Guarantor; and (b) with respect to the Bermuda Secured Obligations, each Loan Party, and any  other Person that becomes a Loan Guarantor pursuant to Section 5.13(a) and/or Section 9.02(e),  but excluding any other Persons who from time to time cease to be Loan Guarantors hereunder  pursuant to Section 9.02(f).         “Loan Guaranty” means, individually or collectively as the context may require, the U.S.  Guaranty and the Bermuda Guaranty.         “Loan Parties” means, individually or collectively as the context may require, the U.S.  Loan Parties and the Bermuda Loan Parties.         “Loans” means the loans and advances made by the Lenders pursuant to this Agreement,  including Swingline Loans and Protective Advances.         “Lock Box Agreement” means, individually and collectively, each “Lock Box Agreement”  referred  to  in  the  U.S.  Security  Agreement,  and  shall  include  each  agreement  delivered  in  connection with the Original Credit Agreement and U.S. Security Agreement.         “Loss” has the meaning assigned to such term in Section 9.03(b).         “Management Fees” means any management fees, consulting fees, advisory fees or other  similar fees paid to the Parent Entity or any Affiliate thereof; provided that the term Management  Fees shall not include costs and expenses of the Parent Entity incurred in connection with overhead  services provided by the Parent Entity to the Company and the Subsidiaries.         “Material  Adverse  Effect”  means  a  material  adverse effect  on  (a)  the  business,  assets,  property, operations or condition, financial or otherwise, of the Company and the Subsidiaries  taken as a whole; (b) the ability of the Loan Parties, taken as a whole, to perform their payment  obligations under the Loan Documents to which they are party; or (c) the legality, validity, binding  effect or enforceability against any Loan Party of the Loan Documents or the rights of, or benefits  available to, the Administrative Agent or any other Lender Party under the Loan Documents.                                          32    





 






         “Material  Agreements”  means,  collectively,  each  agreement  and  contract  to  which  any  Loan Party is a party as of the Effective Date that, if terminated or breached, could reasonably be  expected to result in a Material Adverse Effect.         “Material Indebtedness” means Indebtedness (other than the Loans and Letters of Credit),  or obligations in respect of one or more Swap Agreements, of any one or more of the Company  and the Subsidiaries in an aggregate outstanding principal amount exceeding $25,000,000.  For  purposes  of  determining  Material  Indebtedness,  the “obligations”  of  any  Borrower  or  any  Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount  (giving effect to any netting agreements) that such Borrower or such Subsidiary would be required  to pay if such Swap Agreement were terminated at such time.         “Material Subsidiary” means any Subsidiary of the Company that is a Domestic Subsidiary  or a First-Tier Foreign DRE and (a) the portion of Consolidated Total Assets attributable, on a  stand-alone basis, to such Subsidiary exceeds 5% of the Consolidated Total Assets as of the end  of the most recently completed Fiscal Quarter for which financial statements have been delivered  pursuant  to  Section  5.01;  or  (b)  the  portion  of  EBITDA  (after  excluding  all  intercompany  transactions) attributable, on a stand-alone basis, to such Subsidiary exceeds 5% of EBITDA as of  the end of the most recently completed eight Fiscal Quarters for which financial statements have  been delivered pursuant to Section 5.01; provided that (i) any Domestic Subsidiary or First-Tier  Foreign  DRE  that  directly  or  indirectly  owns  a  Material  Subsidiary  shall  itself  be  a  Material  Subsidiary and (ii) in the event that Domestic Subsidiaries or First-Tier Foreign DREs that would  otherwise not be Material Subsidiaries shall in the aggregate account for a percentage in excess of  10% of the Consolidated Total Assets or 10% of EBITDA as of the end of and for the most recently  completed Fiscal Quarter for which financial statements have been delivered pursuant to Section  5.01, then one or more of such Subsidiaries designated by the Company (or, if the Company shall  make  no  designation,  one  or  more  of  such  Subsidiaries  in  descending  order  based  on  their  respective contributions to Consolidated Total Assets), shall be included as Material Subsidiaries  to the extent necessary to eliminate such excess.         “Maturity  Date”  means,  (a)  with  respect  to  the  Revolving  Loans  (including  Swingline  Loans), July 20, 2023 or any earlier date on which the Revolving Commitments are reduced to  zero or otherwise terminated pursuant to the terms hereof; and (b) with respect to the Term Loans,  July 20, 2023.         “Maximum Liability” has the meaning assigned to such term in Section 10.09.         “Maximum Rate” has the meaning assigned to such term in Section 9.17.         “Mexican Credit Facility” means, collectively, (a) that certain Credit Agreement, dated as  of September 27, 2016, among PPC Mexico, the other borrower party thereto, the guarantors party  thereto, BBVA Bancomer, S.A. Institución de Banca Multiple, Grupo Financiero BBFA Bancomer  and  the  other  lenders  party  thereto,  and  (b)  all  other  agreements,  instruments,  documents  and  certificates entered into by PPC Mexico and its subsidiaries in connection therewith, as such credit  facility may be amended, restated, refinanced, renewed or replaced from time to time.                                           33    





 






         “Mexican Holding Company” means any Mexican Subsidiary established to own, directly  or indirectly, all of the Equity Interests of each other Mexican Subsidiary provided such Person  does not own the Equity Interests of any other Subsidiary.         “Mexican Subsidiary” means, individually or collectively as the context may require, (a)  each Subsidiary organized under the laws of Mexico and (b) any Domestic Subsidiary with no  material operations or assets other than Equity Interests of Subsidiaries organized under the laws  of Mexico.         “Minimum Availability Period” means any period (a) commencing when Availability is  on any date during a Borrowing Base Period less than an amount equal to the lesser of (i) 20% of  the aggregate Revolving Commitments then in effect and (ii) $100,000,000; and (b) ending on the  date that Availability is equal to or greater than an amount equal to the lesser of (i) 20% of the  aggregate  Revolving  Commitments  then  in  effect  and (ii)  $100,000,000  for  a  period  of  30  consecutive days for purposes of the definition of “Weekly Reporting Period”.         “Minimum  Collateral  Amount”  means,  at  any  time,  (i)  with  respect  to  Cash  Collateral  consisting of cash or deposit account balances, an amount equal to 105% of the Fronting Exposure  of all Issuing Banks with respect to Letters of Credit issued and outstanding at such time and (ii)  otherwise, an amount determined by the Administrative Agent and the Issuing Banks in their sole  discretion.         “Moody’s” means Moody’s Investors Service, Inc.         “Mortgaged Property” means, initially, the real properties referred to on Schedule 4.01(n)  and includes each other parcel of real property and improvements and leasehold interests thereto  with respect to which a Mortgage is granted (or is required to be granted) pursuant to Section 5.13.         “Mortgaged  Property  Requirements”  means,  with  respect  to  each  Mortgaged  Property,  each of the following, in form and substance reasonably satisfactory to the Administrative Agent:               (a)   a  Mortgage  (or  an  amendment  thereto  to  the  extent  that  Administrative        Agent  reasonably  requests  such  amendment)  encumbering  such  Mortgaged  Property  in        favor of the Administrative Agent, duly executed and acknowledged by each Loan Party        that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in        form necessary for recording in the recording office of each applicable political subdivision        where each such Mortgaged Property is situated, together with such certificates, affidavits,        questionnaires or returns as shall be required in connection with the recording or filing        thereof  in  order  to  create  in  favor  of  the  Administrative  Agent  (for  the  benefit  of  the        Secured Parties) a valid, perfected first priority security interest and mortgage lien (subject        to Permitted Liens) under Requirements of Law, and such UCC-1 financing statements and        any other instruments as are, in the judgment of the Administrative Agent, necessary to        create in favor of the Administrative Agent (for the benefit of the Secured Parties) a valid,        perfected  first  priority  security  interest  and  mortgage  lien  (subject  to  Permitted  Liens)        under Requirements of Law;                                           34    





 






                     (b)   to  the  extent  not  previously  delivered  to  the  Administrative  Agent  in  connection with the Original Credit Agreement, maps or plans of an as-built survey of the  sites of such Mortgaged Property that are certified to the Administrative Agent and the  Title Insurance Company by an independent land surveyor or engineer licensed to perform  surveys in the State where such Mortgaged Property is located and reasonably satisfactory  to the Administrative Agent and the Title Insurance Company, which maps or plans and  the surveys on which they are based shall be made in accordance with the most recent  Minimum Standard Detail Requirements for Land Title Surveys jointly established and  adopted by the American Land Title Association and the American Congress on Surveying  and  Mapping  and  meeting  the  accuracy  requirements  as  defined  therein,  including  the  requirement that there shall be surveyed and shown on such maps, plats or surveys the  following:  (A) a current “as-built” survey showing the location of any adjoining streets,  easements (including the recording information with respect to all recorded instruments),  the mean high water base line or other legal boundary lines of any adjoining bodies of  water, fences, zoning or restriction setback lines, rights-of-way, utility lines to the points  of connection and any encroachments; (B) all means of ingress and egress, the amount of  acreage and square footage, the address of such Mortgaged Property, the legal description  of such Mortgaged Property; (C) the location of all improvements as constructed on such  Mortgaged Property; (D) the measured distances from the Improvements to the set back  and specified distances from street or property lines in the event that deed restrictions,  recorded plats or zoning ordinances require the same; (E) all courses and distances referred  to  in  the  legal  description;  and  (F)  the  flood  zone  designation,  if  any,  in  which  such  Mortgaged Property is located.  The legal description of such Mortgaged Property shall be  shown  on  the  face  of  each  survey  or  affixed  thereto.   In  addition,  such  maps,  plats  or  surveys shall be sufficient for the Title Insurance Company to remove all standard survey  exceptions from the title insurance policy (or commitment) relating to such Mortgaged  Property  and  issue  the  endorsements  of  the  type  required  by  paragraph  (c)  below.   Notwithstanding the foregoing, in the event that the applicable Loan Party has surveys in  its possession that are in form sufficient to allow the Title Insurance Company to remove  all standard survey exceptions from the title insurance policy (or commitment) relative to  the  applicable  Mortgaged  Property  and  issue  the  endorsements  of  the  type  required  by  paragraph (c) below (to the extent the same are available in the applicable jurisdiction),  then the applicable Loan Party shall not be required to comply with the foregoing survey  requirements relative to such Mortgaged Property;         (c)   a  mortgagee’s  title  insurance  policy  (or  policies) or  endorsements  to  previous policies in favor of the Administrative Agent (to the extent that Administrative  Agent  reasonably  requests  such  endorsements)  that  is  issued  by  the  Title  Insurance  Company in favor of the Administrative Agent and is in form and substance reasonably  satisfactory to the Administrative Agent.  Without limiting the foregoing, each such policy  shall (A) be in an amount satisfactory to the Administrative Agent not to exceed the value  of the Mortgaged Property covered thereby; (B) insure that the interests created by each  Mortgage  on  the  applicable  Mortgaged  Property  creates  in  favor  of  the  Administrative  Agent (for the benefit of the Lender Parties) a valid, perfected first priority security interest  and mortgage lien thereon (subject to Permitted Liens); (C) include a survey reading; (D)  be in the form of ALTA 2006 Loan Policy (or equivalent policies to the extent available in  the applicable jurisdiction); (E) contain such endorsements and affirmative coverages as                                   35                





 






               the  Administrative  Agent  may  require,  including  without  limitation  (to  the  extent  applicable with respect to such Mortgaged Property and available in the  jurisdiction in  which  such  Mortgaged  Property  is  located),  the  following:   aggregation  or  tie-in  endorsement (i.e., policies which insure against losses regardless of location or allocated  value of the insured property up to a stated maximum coverage amount); revolving credit  endorsement;  zoning  endorsement;  variable  rate  endorsement;  survey  endorsement;  comprehensive  endorsement;  first  loss  and  last  dollar  endorsements;  access  and  entry  coverage; location coverage; mineral rights, water rights and surface damage coverage;  separate tax parcel endorsement; subdivision coverage; usury endorsement; doing business  endorsement;  subdivision  endorsement;  environmental  protection  lien  endorsement;  CLTA 119.2 endorsement; utility availability endorsement; contiguity coverage; waiver of  arbitration endorsement; and such other endorsements as the Administrative Agent shall  require in order to provide insurance against specific risks identified by the Administrative  Agent in connection with such Mortgaged Property; and (F) be issued directly by the Title  Insurance Company and with such co-insurance and reinsurance as may be required by the  Administrative  Agent.   Notwithstanding  the  foregoing,  no  zoning  endorsement  will  be  required in the event that the applicable Loan Party obtains a property zoning report for  such Mortgaged Property indicating that the Mortgaged Property is not in violation of the  applicable zoning requirements.  The Administrative Agent shall have received evidence  satisfactory to it that all premiums in respect of each such policy, all charges for mortgage  recording and similar taxes, and all related expenses, if any, have been paid;         (d)   such  customary  affidavits,  certificates,  information  (including  financial  data) and instruments of indemnification (including so-called “gap” indemnification) as  shall  be  required  to  induce  the  Title  Insurance  Company  to  issue  the  title  policies  and  endorsements  contemplated  herein  (and  the  Administrative  Agent  shall  execute  such  documentation required by the applicable jurisdiction so that the Title Insurance Company  may issue such title insurance policies and endorsements);         (e)   such  consents,  approvals,  amendments,  supplements, estoppels,  tenant  subordination agreements or other instruments as necessary or required to consummate the  transaction  contemplated  herein  or  as  shall  reasonably  be  deemed  necessary  by  the  Administrative  Agent  in  order  for  the  owner  or  holder  of  the  fee  or  leasehold  interest  constituting such Mortgaged Property to grant the Lien contemplated by the applicable  Mortgage with respect to such Mortgaged Property;         (f)   to  the  extent  not  previously  delivered  to  the  Administrative  Agent  in  connection with the Original Credit Agreement, a copy of all documents referred to, or  listed as exceptions to title in, the title policy or policies referred to in paragraph (c) above;         (g)   to  the  extent  not  previously  delivered  to  the  Administrative  Agent  in  connection with the Original Credit Agreement, copies of all material leases, subleases,  tenancies, occupancy agreements, rental agreements and other similar agreements related  to possessory interest, if any, in which the applicable Loan Party holds the lessor’s interest  thereunder;                                     36                





 






               (h)   to  the  extent  not  previously  delivered  to  the  Administrative  Agent  in        connection with the Original Credit Agreement, UCC-1 financing statements and other        instruments relating to such Mortgaged Property naming each applicable Loan Party as the        debtor and the Administrative Agent as the secured party, such UCC financing statements        and instruments to be filed in the same recording office where the applicable Mortgage is        filed and such other locations required by a Requirement of Law in order to perfect its first        priority perfected security interest in such Mortgaged Property;               (i)   to  the  extent  not  previously  delivered  to  the  Administrative  Agent  in        connection with the Original Credit Agreement, a zoning report prepared by the Planning        and  Zoning  Resource  Corporation,  or  a  similar  firm reasonably  acceptable  to  the        Administrative Agent, and issued in favor of the Administrative Agent stating that (A) such        Mortgaged Property is zoned in a classification which permits its intended use and purpose;        (B) there are no conditions on such Mortgaged Property that are not in compliance with        such applicable zoning ordinances or that are not legally non-compliant; and (C) otherwise        in form and substance satisfactory to the Administrative Agent;                (j)   (i)  with  respect  to  any  Mortgage  executed  in  connection  with  this         Agreement, a legal opinion of satisfactory local counsel admitted to practice in the State in         which such Mortgaged Property is located, covering such matters as may be reasonably         requested  by  the  Administrative  Agent;  and  (ii)  with  respect  to  any  amendment  to  a         Mortgage  executed  in  connection  with  this  Agreement,  at  the  reasonable  request  of         Administrative Agent, advice of satisfactory local counsel admitted to practice in the State         in which such Mortgaged Property is located, covering mortgage tax issues and such other         customary matters as may be reasonably requested by the Administrative Agent) (it being         agreed  that  any  counsel  that  issued  an  opinion  with  respect  to  the  Original  Credit         Agreement shall be deemed “satisfactory local counsel” for purposes hereof); and                (k)   such other approvals, opinions or documents as the Administrative Agent         may  request,  each  in  form  and  substance  reasonably satisfactory  to  the  Administrative         Agent.          “Mortgages” means any mortgage, deed of trust or other agreement, in form reasonably  satisfactory  to  the  Administrative  Agent,  which  conveys  or  evidences  a  Lien  in  favor  of  the  Administrative Agent, for the benefit of the Secured Parties, on the real property and fixtures of a  Loan Party described therein to secure the Secured Obligations, including each such agreement  delivered in connection with the Original Credit Agreement.         “Moy Park Acquisition” means the acquisition by the Moy Park Acquisition Sub of all of  the Equity Interests of the Moy Park Target pursuant to the terms of the Moy Park Acquisition  Agreement.         “Moy Park Acquisition Agreement” means that certain Share Purchase Agreement by and  among JBS S.A., the Company, the Moy Park Target and the Moy Park Acquisition Sub.         “Moy Park Acquisition Sub” means the wholly owned Subsidiary of the Company that will  acquire all of the Equity Interests of the Moy Park Target.                                          37    





 






         “Moy Park Entities” means Ivory Investments Luxembourg Sàrl, Granite Holdings Sàrl  and Moy Park Holdings (Europe) Limited, and each of their respective Subsidiaries.         “Moy Park Target” means Granite Holdings Sàrl, an entity organized under the laws of  Luxembourg  and  the  owner  of  100%  of  the  Equity  Interests  of  Moy  Park  Holdings  (Europe)  Limited.”         “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of  ERISA.         “Net Income” means, for any period, the consolidated net income (or loss) of the Company,  determined on a consolidated basis; provided that there shall be excluded (a) the income (or deficit)  of any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated  with the Company or any of the Subsidiaries; and (b) the income (or deficit) of any Person (other  than a Subsidiary) in which the Company or any of the Subsidiaries has an ownership interest,  except to the extent that any such income is actually received by the Company or such Subsidiary  in the form of dividends or similar distributions.         “Net Proceeds” means, with respect to any event, but only as and when received by the  Company  or  any  of  the  Subsidiaries,  (a)  the  cash  proceeds  received  in  respect  of  such  event  including (i) any cash received in respect of any non-cash proceeds (including any cash payments  received by way of deferred payment of principal pursuant to a note or installment receivable or  purchase price adjustment receivable or otherwise, but excluding any interest payments), (ii) in the  case of a casualty, insurance proceeds and (iii) in the case of a condemnation or similar event,  condemnation awards and similar payments; net of (b) the sum of (i) all reasonable fees and out- of-pocket expenses paid to third parties (other than Affiliates) in connection with such event, (ii) all  out-of-pocket expenses reimbursed to Affiliates in connection with such event, (iii) in the case of  a  sale,  transfer  or  other  disposition  of  an  asset  (including  pursuant  to  a  sale  and  leaseback  transaction or a casualty or a condemnation or similar proceeding), the amount of all payments  required to be made as a result of such event to repay Indebtedness (other than Loans) secured by  such  asset  or  otherwise  subject  to  mandatory  prepayment  as  a  result  of  such  event  (it  being  understood  that  such  amount  shall  include  the  amount  of  all  distributions  and  other  payments  required to be made to minority equity holders by the recipient of such Net Proceeds as a result of  such sale, transfer or disposition), and (iv) the amount of all Taxes paid or Tax Distributions (or  reasonably estimated to be payable), including in connection with the grant, exercise, conversion  or  vesting  of  any  award  of  Equity  Interests  of  the Company,  and  the  amount  of  any  reserves  reasonably established by the Company for the purpose of funding any liabilities that are incurred  in  connection  with  the  disposition  of  any  asset  (including  pension  and  other  post-employment  benefit  obligations  associated  with  such  disposition)  and  contingent  liabilities  reasonably  estimated to be payable, in each case during the Fiscal Year that such event occurred or the next  succeeding Fiscal Year and that are directly attributable to such event (as determined reasonably  and in good faith by a Financial Officer); provided that, to the extent that any such reserves are not  utilized by the Company or the Subsidiaries to fund the applicable liabilities prior to the end of  such  succeeding  Fiscal  Year,  the  amount  of  such  unutilized  reserves  shall  constitute  “Net  Proceeds”.                                           38    





 






         “NOLV  Percentage”  means,  with  respect  to  a  particular  category  of  inventory,  the  net  orderly  liquidation  value  percentage  identified  for  such  category  in  the  most  recent  inventory  appraisal provided by the Borrower Representative to the Administrative Agent.         “Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(d).         “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender  at such time.         “Non-Paying Guarantor” has the meaning assigned to such term in Section 10.10.         “Non-U.S.  LC  Collateral  Account”  has  the  meaning  assigned  to  such  term  in  Section 2.06(j).         “Notes”  means,  individually  or  collectively  as  the context  may  require,  the  Revolving  Notes, the Swingline Notes and the Term Notes.         “Obligated Party” has the meaning assigned to such term in Section 10.02.         “Obligations”  means,  individually  or  collectively  as  the  context  may  require,  the  U.S.  Obligations and the Bermuda Obligations.         “Off-Balance Sheet Liability” of a Person means (a) any repurchase obligation or liability  of  such  Person  with  respect  to  accounts  or  notes  receivable  sold  by  such  Person  as  part  of  a  factoring,  securitization  or  similar  transaction  and  not  in  connection  with  the  compromise,  settlement or collection thereof; or (b) any indebtedness, liability or obligation arising with respect  to any other transaction which is the functional equivalent of or takes the place of any Indebtedness  described in paragraph (a)(i) or (b) of the definition thereof, but which does not constitute a liability  on the balance sheets of such Person (other than operating leases).         “Original Closing Date” has the meaning set forth in the recitals to this Agreement.         “Original Credit Agreement” has the meaning set forth in the recitals to this Agreement.         “Original Lenders” has the meaning set forth in the recitals to this Agreement.         “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result  of a present or former connection between such Recipient and the jurisdiction imposing such Tax  (other than connections arising from such Recipient having executed, delivered, become a party  to,  performed  its  obligations  under,  received  payments  under,  received  or  perfected  a  security  interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or  sold or assigned an interest in any Loan or Loan Document).         “Other  Taxes”  means  all  present  or  future  stamp,  court  or  documentary,  intangible,  recording, filing or similar Taxes that arise from any payment made under, from the execution,  delivery, performance, enforcement or registration of, from the receipt or perfection of a security  interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are                                          39    





 






   Other Connection Taxes imposed with respect to an assignment (other than an assignment made  pursuant to Section 2.20).          “PACA” means the Perishable Agricultural Commodities Act, 1930, 7 U.S.C. Section 499a  et  seq .         “Parent Entity” means JBS S.A., a corporation ( sociedade anonima ) organized under the  laws  of  the  Federative  Republic  of  Brazil  or  any  direct  or  indirect  wholly-owned  subsidiary  thereof.         “Participant” has the meaning set forth in Section 9.04(c).         “Participant Register” has the meaning specified in Section 9.04(d).         “Patriot Act” has the meaning assigned to such term in the definition of “Anti-Terrorism  Laws”.         “Paying Guarantor” has the meaning assigned to such term in Section 10.10.         “PBGC”  means  the  Pension  Benefit  Guaranty  Corporation  referred  to  and  defined  in  ERISA and any successor entity performing similar functions.         “Permitted  Acquisition”  means  the  purchase  or  other  acquisition  (whether  by  merger,  amalgamation or otherwise) by the Company or any other Subsidiary of Equity Interests in, or all  or substantially all the assets of (or all or substantially all the assets constituting a business unit,  division, product line or line of business of), any Person if, in the case of any purchase or other  acquisition  of  Equity  Interests  in  a  Person,  such  Person,  upon  the  consummation  of  such  acquisition, will be a wholly-owned Subsidiary (including as a result of a merger or consolidation  between any Subsidiary and such Person); provided that (a) such purchase or acquisition was not  preceded by, or consummated pursuant to, an unsolicited tender offer or proxy contest initiated by  or  on  behalf  of  the  Company  or  any  Subsidiary;  (b) all  transactions  related  thereto  are  consummated in accordance with Section 5.07(a); (c) the business of such Person, or such assets,  as the case may be, constitute a business permitted by Section 6.03(b); (d) in the case of any newly  created  or  acquired  Domestic  Subsidiary  that  is  required  to  be  a  Loan  Party  pursuant  to  Section 5.13(a), such Subsidiary shall be a U.S. Loan Guarantor and all of such Subsidiary’s assets  (including, if applicable, the Equity Interests of such Subsidiary) are subject to a valid, perfected  first priority security interest (subject to Permitted Liens) in favor of the Administrative Agent (for  the benefit of the Lender Parties); (e) in the case of a newly created or acquired Subsidiary that is  organized  under  the  laws  of  Bermuda,  such  Subsidiary  shall  become  a  party  to  a  guarantee  agreement  that  guarantees  repayment  of  the  Bermuda Secured  Obligations  and  a  security  agreement that secures repayment of the Bermuda Secured Obligations, in each case in accordance  with Section 5.13(c); and (f)(i) immediately prior to any such purchase or other acquisition or  entering into a commitment with respect to such purchase or acquisition, whichever occurs first,  (A) no Default or Event of Default shall have occurred and be continuing and (B) the Borrowers  shall be in compliance with the covenant set forth in Section 6.13; (ii) immediately after giving  effect to any such purchase or other acquisition, or entering into a commitment with respect to  such purchase or acquisition, whichever occurs first, on a Pro Forma Basis, (A) no Default or                                          40    





 






   Event  of  Default  shall  have  occurred  and  be  continuing  and  (B)  the  Borrowers  shall  be  in  compliance with the covenant set forth in Section 6.13 (it being understood that Eligible Accounts  and  Eligible  Inventory  acquired  in  the  applicable  Permitted  Acquisition  shall  be  included  for  purposes  of  determining  such  compliance  immediately  after  giving  effect  to  such  Permitted  Acquisition) for the Test Period ending immediately preceding the consummation of any such  purchase  or  other  acquisition  for  which  financial  statements  have  been  delivered  pursuant  to  Section 5.01(a) or (b); and (iii) the Company shall have delivered to the Administrative Agent a  certificate  of  its  chief  financial  officer,  in  form  and  substance  reasonably  satisfactory  to  the  Administrative Agent, certifying that all the requirements set forth in this definition have been  satisfied  with  respect  to  such  purchase  or  other  acquisition,  together  with  reasonably  detailed  calculations  demonstrating  satisfaction  of  the  requirements  set  forth  in  clauses  (f)(i)(B)  and  (f)(ii)(B) above.         “Permitted Customer Factoring Program” means the sale of any Receivables and Related  Assets in connection with a Customer Factoring Program; provided (i) the documents entered into  by  any  Loan  Party  or  its  Subsidiary  pursuant  to  a  Customer  Factoring  Program  shall  be  on  customary terms and conditions, (ii) all such sales shall be on a limited recourse basis and the  purchase price shall be paid in cash to such Loan Party or its Subsidiary at the time of the sale, and  (iii) such Receivables and Related Assets shall not be sold for less than a customary discount below  the  face  value  thereof  consistent  with  similar  supply  chain  finance  arrangements  for  such  Customer.         “Permitted Discretion” means a determination made in good faith and in the exercise of  reasonable (from the perspective of a secured asset-based lender) business judgment.         “Permitted Encumbrances” means:               (a)   Liens imposed by law for Taxes that are not yet due or are being contested         or not paid in compliance with Section 5.04;               (b)   carriers’,  warehousemen’s,  mechanics’,  materialmen’s,  repairmen’s  and        other like Liens imposed by law, arising in the ordinary course of business and securing        obligations that are not overdue by more than 30 days or are being contested in compliance        with Section 5.04;               (c)   other  than  Liens  imposed  by  ERISA,  pledges  and deposits  made  in  the        ordinary course of business (i) in compliance with workers’ compensation, unemployment        insurance,  health,  disability  or  other  employee  benefits  or  social  security  legislation  or        property, casualty or liability insurance and other social security laws or retirement benefits        or similar laws or regulations and (ii) in respect of letters of credit or bank guarantees that        are posted to secure the payment of items in clause (i);               (d)   Liens  granted and deposits and other investments made to secure  (i) the        performance of bids, contracts, leases, statutory obligations, surety bonds, appeal bonds,        performance bonds, bid bonds, customs bonds and other obligations of a like nature, in        each case in the ordinary course of business and (ii) in respect of letters of credit or bank        guarantees that are posted to secure the payment of items in clause (i);                                          41    





 






               (e)   Liens incurred to secure appeal bonds and judgment and attachment liens in        respect of judgments;               (f)   easements,  zoning  restrictions,  mineral  reservations,  rights-of-way,        restrictions,  encroachments,  covenants,  servitudes and  similar  encumbrances  on  real        property  customarily  granted  by  similar  situated  property  owners  in  the  Borrowers’        industry or imposed by Requirements of Law or arising in the ordinary course of business        that  do  not  materially  and  adversely  affect  the  use,  value  or  enjoyment  of  the  affected        property  as  currently  used  by  the  applicable  Loan  Party  or  interfere  with  the  ordinary        conduct of business of any Borrower or any of the Subsidiaries in any material respect;               (g)   leases, subleases, licenses or sublicenses entered into by the Borrowers or        the Subsidiaries or granted to third Persons by the Borrowers or the Subsidiaries in the        ordinary  course  of  business  (including  interests  of  any  lessor,  sublessor,  licensee  or        sublicensee  thereunder)  that  do  not  materially  detract  from  the  value  of  the  affected        property or materially interfere with the ordinary conduct of business of any Borrower or        any Subsidiary;               (h)   Liens of a collecting bank arising in the ordinary course of business and        covering only items being collected upon and bankers’ liens,  rights of setoff and other        similar Liens on cash and investments on deposit in one or more accounts maintained by        the Company or any of the Subsidiaries, in each case in the ordinary course of business,        securing  amounts  owing  to  such  bank  with  respect  to  cash  management  arrangements,        including  those  involving  pooled  cash  management  and  deposit  accounts,  and  netting        arrangements in respect of such accounts; provided that, to the extent required by the terms        of the applicable Loan Documents, such bank shall have entered into a Deposit Account        Control Agreement with the Administrative Agent with respect to any such accounts; and                (i)  Liens in favor of customs and revenue authorities arising as a matter of law        to secure payment of customs duties in connection with the importation of goods.         provided  that  the  term  “Permitted  Encumbrances”  shall  not  include  any  Lien  securing  Indebtedness for borrowed money.         “Permitted Investments” means:               (a)   direct obligations of, or obligations the principal of and interest on which        are unconditionally guaranteed by, the United States (or by any agency thereof to the extent        such obligations are backed by the full faith and credit of the United States), in each case        maturing within one year from the date of acquisition thereof;               (b)   investments in commercial paper maturing within 270 days from the date        of acquisition thereof and having, at such date of acquisition, a rating of at least A-3 or        better by S&P or P-3 or better by Moody’s;               (c)   investments  in  certificates  of  deposit,  banker’s  acceptances  and  time        deposits maturing within one year from the date of acquisition thereof issued or guaranteed        by or placed with, and money market deposit accounts issued or offered by, any domestic                                         42    





 






               office of any commercial bank organized under the laws of the United States or any State  thereof which has a combined capital and surplus and undivided profits of not less than  $500,000,000  and  which  has,  at  the  time  of  acquisition  of  the  applicable  certificate  of  deposit, banker’s acceptance or time deposit, (i) in the case of such investments maturing  within 180 days from the date of acquisition thereof, short-term debt ratings of A-3 or better  by S&P or P-3 or better by Moody’s, and (ii) in the case of such investments maturing later  than 180 days (but in any event within one year) from the date of acquisition thereof, long- term debt ratings of BBB- or better by S&P or Baa3 or better by Moody’s;          (d)   fully collateralized repurchase agreements with a term of not more than 30  days  for  securities  described  in  paragraph  (a)  above  and  entered  into  with  a  financial  institution satisfying the criteria described in paragraph (c) above;         (e)   direct obligations issued by any State of the United States or any political  subdivision of such state or public instrumentality thereof maturing within one year and  having, at the time of acquisition, a rating of at least BBB- or better by S&P or Baa3 or  better by Moody’s;         (f)   money market funds that (i) comply with the criteria set forth in SEC Rule  2a-7 under the Investment Company Act of 1940, (ii) are rated BBB- or better by S&P or  Baa3 or better by Moody’s and (iii) have portfolio assets of at least $5,000,000,000; and         (g)   in  respect  of  any  Foreign  Subsidiary,  (i)  instruments  equivalent  to  those  Permitted Investments referred to in paragraphs (a) through (f) above that are denominated  in local currencies other than dollars, which have a credit quality and tenor no less favorable  than the credit quality and tenor of those Permitted Investments referred to in paragraphs  (a) through (f) above and customarily used by Persons for short-term cash management  purposes in the jurisdiction of the relevant Foreign Subsidiary, to the extent reasonably  required in connection with any business conducted by such Foreign Subsidiary and (ii) in  the  case  of  PPC  Mexico  and  its  subsidiaries,  (A) Certificados  de  la  Tesorería  de  la  Federación (Cetes) or Bonos de Desarrollo del Gobierno Federal (Bondes)  issued by the  government of México and maturing not more than 365 days after the acquisition thereof,  (B) Investments in money market funds substantially all of whose assets are comprised of  securities of the types described in clauses (a) through (g), (C) demand deposit accounts  with Mexican banks specified in clause (D) of this definition, maintained in the ordinary  course of business, and (D) certificates of deposit, bank promissory notes and bankers’  acceptances denominated in Pesos, maturing not more than 365 days after the acquisition  thereof and issued or guaranteed by any one of the four largest banks (based on assets as  of the immediately preceding December 31) organized under the laws of México and which  are  not  under  intervention  or  controlled  by  the Instituto  para  la  Protección  al  Ahorro  Bancario  or any successor thereto or any banking subsidiary of a foreign bank which has   capital,  surplus  and  undivided  profits  aggregating in  excess  of  US$50,000,000,  or  the   foreign currency equivalent thereof, and has outstanding debt which is rated “A,” or such   similar equivalent rating, or higher by S&P or Moody’s.     “Permitted Lien” means any Lien permitted under Section 6.02.                                    43                





 






         “Permitted Subordinated Indebtedness” means any unsecured Indebtedness owing by the  Loan Parties or the Subsidiaries at any time, provided, that, (a) such Indebtedness shall not require  any scheduled payment of principal or mandatory prepayment or redemption at the option of the  holder thereof prior to six months following the latest Maturity Date in effect on the date of the  incurrence of such Indebtedness, provided, such Indebtedness may contain customary prepayment  events requiring payment of principal if, both concurrently with and after giving effect to such  payment  under  such  Indebtedness,  there  are  no  Loans  outstanding,  (b)  such  Indebtedness  is  subordinated  in  right  of  payment  and  action  to  the Obligations  pursuant  to  a  Subordination  Agreement, (c) such Indebtedness does not contain any financial performance covenants, is not  cross defaulted to this Agreement and all thresholds, “baskets” and the equivalent set forth in the  covenants and events of default therein (including change of control provisions) are less restrictive  than the covenants and events of default contained in this Agreement and is otherwise on economic  terms no less favorable to the Loan Parties and the Subsidiaries than could be obtained in an arm’s  length transaction with an unaffiliated third party, and (d) both before and after giving effect to  incurrence of such Indebtedness, no Default or Event of Default shall exist under this Agreement  or result therefrom.         “Person”  means  any  natural  person,  corporation,  limited  liability  company,  trust,  joint  venture, association, company, partnership, Governmental Authority or other entity.         “Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject  to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and  in respect of which any Borrower or any ERISA Affiliate is (or, if such plan were terminated,  would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5)  of ERISA.         “Platform” has the meaning assigned to such term in Section 9.01(d).         “Pledged Subsidiary” has the meaning assigned to such term in Section 6.03(b)(v).         “PPC Mexico” means Avícola Pilgrim’s Pride de Mexico, S. A. de C.V, or any Mexican  Holding Company.         “PPC Refinancing” means the refinancing of the Loans (as defined in the Original Credit  Agreement) under the Original Credit Agreement and reallocation of the Commitments (as defined  in  the  Original  Credit  Agreement)  of  the  Original  Lenders  thereunder  as  set  forth  on  the  Commitment Schedule.         “Prepayment Event” means:               (a)   any sale, transfer or other disposition of any property or asset of any Loan        Party described in Section 6.05(e), (g), (h) or (m); provided that the receipt of amounts        from transactions described in this paragraph (a) shall constitute a Prepayment Event only        to the extent such amounts exceed $25,000,000 in any Fiscal Year; or                (b)   any  casualty  or  other  insured  damage  to,  or  any  taking  under  power  of        eminent domain or by condemnation or similar proceeding of, any property or asset of any        Loan  Party  with  a  fair  value  immediately  prior  to  such  event  equal  to  or  greater  than                                         44    





 






         $5,000,000;  provided  that  the  receipt  of  amounts  from  transactions  described  in  this        paragraph (b) shall constitute a Prepayment Event only to the extent such amounts exceed        $25,000,000 in any Fiscal Year; or               (c)   [reserved]; or               (d)   the  incurrence  by  any  Loan  Party  of  any  Indebtedness,  other  than        Indebtedness permitted under Section 6.01.         “Prime Rate” means a variable rate of interest per annum equal to the “U.S. prime rate” as  reported on such day in the Money Rates Section of the Eastern Edition of The Wall Street Journal ,  or if the Eastern Edition of The Wall Street Journal  is not published on such day, such rate as last  published in the Eastern Edition of The Wall Street Journal .  In the event the Eastern Edition of  The Wall Street Journal ceases to publish such rate or an equivalent on a regular basis, the term  “Prime  Rate”  shall  be  determined  on  any  day  by  reference  to  such  other  regularly  published  average  prime  rate  for  such  date  applicable  to  such  commercial  banks  as  is  acceptable  to  the  Administrative Agent in its reasonable discretion.  Any change in Prime Rate shall be automatic,  without the necessity of notice provided to the Company or any other Loan Party.         “Pro Forma Basis” means, with respect to any test hereunder in connection with any event,  that such test shall be calculated after giving effect on a pro forma basis for the period of such  calculation to (a) such event as if it happened on the first day of such period (it being understood  that with respect to any acquisition or disposition, any such adjustments (including cost savings  that are reasonably acceptable to the Administrative Agent) shall be permitted solely to the extent  they arise out of events which are directly attributable to the acquisition or the disposition, are  factually supportable and are expected to have a continuing impact within 180 days after the date  of such acquisition or disposition, and as certified by a Financial Officer of the Company); or (b)  the  incurrence  of  any  Indebtedness  by  the  Company  or  any  Subsidiary  and  any  incurrence,  repayment,  issuance  or  redemption  of  other  Indebtedness  of  the  Company  or  any  Subsidiary  occurring at any time subsequent to the last day of the Test Period and on or prior to the date of  determination,  as  if  such  incurrence,  repayment,  issuance  or  redemption,  as  the  case  may  be,  occurred on the first day of the Test Period.         “Protective Advance” has the meaning assigned to such term in Section 2.04(a).         “PSA” means the Packers and Stockyard Act of 1921, 7 U.S.C. Section 181 et seq .         “PTE” means a prohibited transaction class exemption issued by the U.S. Department of  Labor, as any such exemption may be amended from time to time.         “Puerto Rico Security Agreement” means that certain Pledge, Assignment and Security  Agreement  dated  as  of  February  11,  2015,  by  and  among  the  Bermuda  Borrowers  and  the  Administrative  Agent  (as  successor-in-interest  to  Rabobank  as  administrative  agent),  for  the  benefit  of  the  Secured  Parties,  as  ratified  and  reaffirmed  by  the  Bermuda  Borrowers  on  the  Effective Date pursuant to the Reaffirmation Agreement.         “Qualified  Securitization  Facility”  means  any  Securitization  Facility  (a)  constituting  a  securitization financing facility that meets the following conditions: (i) the Company will have                                         45    





 






   determined in good faith that such Securitization Facility (including financing terms, covenants,  termination events and other provisions) is in the aggregate economically fair and reasonable to  the  Company  and  the  applicable  Subsidiary  or  Securitization  Subsidiary,  and  (ii)  all  sales  or  contributions of Securitization Assets and related assets to the applicable Person or Securitization  Subsidiary are made at fair market value (as determined in good faith by the Company); or (b)  constituting a receivables financing facility.         “Rabobank” means Coöperatieve Rabobank U.A., New York Branch (formerly known as  Coöperatieve  Centrale  Raiffeisen-Boerenleenbank  B.A.,  “Rabobank  Nederland”,  New  York  Branch), in its individual capacity, and its successors.         “Reaffirmation  Agreement”  means  a  reaffirmation  agreement  dated  as  of  the  Effective  Date  by  and  among  the  Loan  Parties  and  the  Administrative  Agent,  in  form  and  substance  acceptable to the Administrative Agent.          “Receivables and Related Assets” means Accounts of a Customer owing to an Loan Party  or its Subsidiary arising from a sale of Inventory or the rendering of services in the ordinary course  of business, together with (a) all property subject thereto from time to time purporting to secure  payment  of  such  obligations,  whether  pursuant  to  the  contract  related  to  such  obligations  or  otherwise,  together  with  all  financing  statements  describing  any  collateral  securing  such  obligations; (b) all rights to payment of any interest, finance charges, freight charges and other  obligations  related  thereto;  (c)  all  supporting  obligations,  including  but  not  limited  to,  all  guaranties, insurance and other agreements or arrangements of whatever character from time to  time supporting or securing payment of such obligations whether pursuant to the contract related  to such obligations or otherwise; (d) all contracts, chattel paper, instruments and other documents,  and other information relating to such obligations; and (e) collections and proceeds with respect  to the foregoing.         “Recipient” means (a) any Agent, (b) any Lender or (c) any Issuing Bank, as applicable.         “Redomestication” has meaning assigned to such term in Section 6.03(b)(vii).         “Register” has the meaning assigned to such term in Section 9.04(b)(iv).         “Related Parties” means, with respect to any specified Person, such Person’s Affiliates and  the respective directors, officers, employees, agents and advisors of such Person and such Person’s  Affiliates.         “Rent  or  Collateral  Access  Reserve”  means,  with  respect  to  any  facility,  warehouse,  distribution  center,  regional  distribution  center, depot,  rail  car  or  other  location  where  any  Inventory subject to Liens arising by operation of Requirements of Law is located and as to which  no  Collateral  Access  Agreement  is  in  effect,  a  reserve  equal  to  (i)  three  months’  rent  at  such  facility, warehouse, distribution center, regional distribution center, depot or other location or (ii)  in the case of a rail car, an amount equal to the freight for transporting such Inventory and any  other amounts payable by the Loan Parties to the applicable carrier.         “Report” means reports prepared by the Collateral Agent or another Person showing the  results of appraisals, field examinations or audits pertaining to the assets of the Borrowers and/or                                         46    





 






   Loan Guarantors from information furnished by or on behalf of the Borrowers, after the Collateral  Agent has exercised its rights of inspection pursuant to this Agreement, which Reports may be  distributed to the Lender Parties by the Administrative Agent.         “Required  Lenders”  means,  at  any  time,  Lenders  having  (or,  in  the  case  of  Voting  Participants, holding participations in) Credit Exposure and unused Commitments representing  more than 50% of the sum of the aggregate Credit Exposure and unused Commitments at such  time.   For  purposes  of  this  definition,  the  Credit Exposure  and  unused  Commitments  of  each  Lender  shall  be  reduced  by  the  amount  thereof  that is  allocated  to  Voting  Participants.  The  Commitment and Credit Exposure of any Defaulting Lender shall be disregarded in determining  Required Lenders at any time.         “Required Revolving Lenders” means, at any time, Revolving Lenders having (or, in the  case of Voting Participants, holding participations in) Revolving Exposures and unused Revolving  Commitments representing more than 50% of the sum of the Aggregate Revolving Exposure and  unused  Revolving  Commitments  at  such  time.   For  purposes  of  this  definition,  the  Revolving  Exposure and unused Revolving Commitments of each Revolving Lender shall be reduced by the  amount thereof that is allocated to Voting Participants.  The unused Revolving Commitment and  Revolving  Exposure  of  any  Defaulting  Lender  shall  be  disregarded  in  determining  Required  Revolving Lenders at any time.         “Requirement of Law” means, as to any Person, the certificate of incorporation and bylaws  or  other  organizational  or  governing  documents  of  such  Person,  and  any  law,  treaty,  rule  or  regulation or determination of an arbitrator or a court or other Governmental Authority, in each  case applicable to or binding upon such Person or any of its property or to which such Person or  any of its property is subject.         “Reserves” means any and all reserves which the Administrative Agent deems necessary,  in its Permitted Discretion, to maintain (including, without limitation, reserves for accrued and  unpaid interest on the Secured Obligations, Banking Services Reserves, Rent or Collateral Access  Reserves, Dilution Reserves, Inventory Reserves, reserves for Swap Obligations that constitute  Secured Obligations, reserves for Permitted Liens that attach to any Loan Party’s Accounts or  Inventory pursuant to Section 6.02, reserves for contingent liabilities of any Loan Party, reserves  in respect of rights of sellers of livestock, poultry and perishable agricultural commodities under  PACA,  PSA  or  other  similar  Requirements  of  Law  (including  outstanding  checks  to  livestock  growers,  swine  fee  payables,  deferred  livestock  payables  and  the  grower  guarantee  payables),  reserves for consignee’s, warehousemen’s and bailee’s charges, reserves for unpaid and accrued  sales taxes, reserves for banker’s liens, rights of setoff or similar rights and remedies as to deposit  accounts, reserves for uninsured losses of any Loan Party, reserves for uninsured, underinsured,  un-indemnified or under-indemnified liabilities or potential liabilities with respect to any litigation  (whether  or  not  previously  disclosed  to  the  Lender Parties)  and  reserves  for  Taxes,  fees,  assessments, and other governmental charges) with respect to the Collateral or any Loan Party, in  each case without duplication.         “Restricted Payment” means any dividend or other distribution (whether in cash, securities  or other property) with respect to any Equity Interests in the Company or any Subsidiary, or any  payment  (whether  in  cash,  securities  or  other  property),  including  any  sinking  fund  or  similar                                         47    





 






   deposit,  on  account  of  the  purchase,  redemption,  retirement,  acquisition,  cancellation  or  termination of any such Equity Interests in the Company.         “Restructuring  Charges”  means  any  asset  impairment charges,  lease  termination  costs,  severance costs, facility shutdown costs, write-offs and write-downs of Intangible Assets and other  related  restructuring  charges  related  to  or  associated  with  a  permanent  reduction  in  capacity,  closure  of  plants  or  facilities,  cut-backs  or  plant  closures  or  a  significant  reconfiguration  of  a  facility.         “Revolving Commitment” means, with respect to each Lender, the commitment, if any, of  such  Lender  to  make  Revolving  Loans  and  to  acquire participations  in  Letters  of  Credit  and  Swingline Loans hereunder, expressed as an amount representing the maximum possible aggregate  amount of such Lender’s Revolving Exposure hereunder, as such commitment may be reduced or  increased  from  time  to  time  pursuant  to  (a)  Sections  2.09  and  2.10,  respectively,  and  (b) assignments by or to such Lender pursuant to Section 9.04.  The initial amount of each Lender’s  Revolving  Commitment  is  set  forth  on  the  Commitment  Schedule  or  in  the  Assignment  and  Assumption pursuant to which such Lender shall have assumed its Revolving Commitment, as  applicable.  The aggregate amount of the Lenders’ Revolving Commitments as of the Effective  Date is $750,000,000.         “Revolving Exposure” means, with respect to any Lender at any time, the sum (without  duplication) of (a) the outstanding principal amount of Revolving Loans of such Lender at such  time, plus  (b) the Swingline Exposure of such Lender at such time, plus  (c) the LC Exposure of  such Lender at such time.         “Revolving Lender” means, as of any date of determination, a Lender with a Revolving  Commitment  or,  if  the  Revolving  Commitments  have  terminated  or  expired,  a  Lender  with  Revolving Exposure.         “Revolving Loans” means the Revolving Loans extended by the Revolving Lenders to the  Borrowers pursuant to Section 2.01(a) and Section 2.10.         “Revolving  Note”  means  a  promissory  note  of  the  Borrowers  that  is  payable  to  any  Revolving Lender, in substantially the form of Exhibit E-1, evidencing the aggregate Indebtedness  of the Borrowers to such Revolving Lender resulting from outstanding Revolving Loans, and also  means all other promissory notes accepted from time to time in substitution therefor or renewal  thereof.         “S&P”  means  Standard  &  Poor’s  Ratings  Services,  a  division  of  The  McGraw  Hill  Companies, Inc.         “Sanctioned Person” has the meaning assigned to such term in Section 3.20.         “Sanctions” means any sanctions administered by or enforced by the U.S. Department of  the Treasury’s Office of Foreign Assets Control, the U.S. Department of State, the United Nations  Security Council, the European Union, Her Majesty’s Treasury, the Netherlands, or other relevant  sanctions authority.                                          48    





 






         “SEC” means the Securities and Exchange Commission.         “Secured Grower Payables” means all amounts owed from time to time by any Borrower  or  Loan  Guarantor  to  any  Person  on  account  of  the  purchase  price  of  agricultural  products  or  services (including poultry and livestock) if the Administrative Agent reasonably determines that  such Person is entitled to the benefits of any grower’s or producer’s lien, statutory trust or similar  security arrangements to secure the payment of any amounts owed to such Person (in each case  whether any of the foregoing arises under PACA, PSA or other similar Requirements of Law).         “Secured Obligations” means, individually or collectively as the context may require, the  U.S. Secured Obligations and the Bermuda Secured Obligations.         “Secured Parties” means, individually or collectively as the context may require, each of  the Lender Parties and each Bank Product Provider.         “Secured Swap Agreement” means any Swap Agreement with a Lender or an Affiliate of  a Lender at the time of entering into such Swap Agreement that constitutes a “swap” within the  meaning of Section 1(a)(47) of the Commodity Exchange Act.         “Securitization Assets” means (a) the accounts receivable, royalty or other revenue streams  and other rights to payment and other assets related thereto subject to a Qualified Securitization  Facility  and  the  proceeds  thereof;  and  (b)  contract  rights,  lockbox  accounts  and  records  with  respect  to  such  accounts  receivable  and  any  other  assets  customarily  transferred  together  with  accounts receivable in a securitization financing.         “Securitization Facility” means any transaction or series of securitization financings that  may be entered into by the Borrowers or any Subsidiary pursuant to which such Borrower or any  such  Subsidiary  may  sell,  convey  or  otherwise  transfer,  or  may  grant  a  security  interest  in,  Securitization  Assets  to  either  (a)  a  Person  that  is  not  a  Borrower  or  a  Subsidiary  or  (b)  a  Securitization  Subsidiary  that  in  turn  sells  such Securitization  Assets  to a  Person  that  is  not  a  Borrower  or  a  Subsidiary,  or  may  grant  a  security  interest  in,  any  Securitization  Assets  of  a  Borrower or any of their Subsidiaries.         “Securitization  Fees”  means  distributions  or  payments  made  directly  or  by  means  of  discounts with respect to any participation interest issued or sold in connection with, and other  fees and expenses (including reasonable fees and expenses of legal counsel) paid to a Person that  is not a Securitization Subsidiary in connection with, any Qualified Securitization Facility.         “Securitization  Subsidiary”  means  any  Subsidiary  formed  for  the  purpose  of,  and  that  solely  engages  only  in,  one  or  more  Qualified  Securitization  Facilities  and  other  activities  reasonably related thereto.         “Security Agreements” means, individually or collectively as the context may require, the  U.S. Security Agreement, the Bermuda Pledge Agreement, the Bermuda Security Agreement and  the Puerto Rico Security Agreement.         “Senior  Indebtedness”  means,  at  any  date,  the  aggregate  principal  amount  of  all  Indebtedness (other than unsecured Indebtedness) of the Company at such date, determined on a                                         49    





 






   consolidated  basis,  to  the  extent  required  to  be  reflected  in  the  “Liabilities”  section  of  the  consolidated  balance  sheet  of  the  Company  (it  being  understood  that  all  current  intercompany  liabilities  shall  be  excluded  whether  shown  on  the consolidated  balance  sheet  or  excluded  therefrom on a net basis).         “Shareholders’ Equity” means, as of any date of determination, consolidated shareholders’  equity  of  the  Company  as  of  such  date;  provided  that  charges  in  an  amount  not  to  exceed  $25,000,000 in any Fiscal Year for non-cash losses related to non-recurring items shall be excluded  from the calculation of shareholders’ equity of the Company.         “Standby LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount  of all outstanding Standby Letters of Credit at such time, plus  (b) the aggregate amount of all LC  Disbursements relating to Standby Letters of Credit that have not yet been reimbursed by or on  behalf of the Borrowers at such time.  The Standby LC Exposure of any Revolving Lender at any  time shall be its Applicable Percentage of the aggregate Standby LC Exposure at such time.         “Standby Letter of Credit” means any Letter of Credit other than a Commercial Letter of  Credit.         “Statutory  Reserve  Rate”  means  a  fraction  (expressed  as  a  decimal),  the  numerator  of  which is the number one and the denominator of which is the number one minus the aggregate of  the maximum reserve percentages (including any marginal, special, emergency or supplemental  reserves) expressed as a decimal established by the Board to which the Administrative Agent is  subject for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation  D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation  D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such  reserve requirements without benefit of or credit for proration, exemptions, or offsets that may be  available from time to time to any Lender under such Regulation D or any comparable regulation.  The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any  change in any reserve percentage.         “Subject Loan Party” has the meaning assigned to such term in Section 6.03(b)(vi)(B).         “Subordination  Agreement”  means,  individually  and  collectively  as  the  context  may  require,  all  subordination  agreements  executed  by  a  holder  of  any  Permitted  Subordinated  Indebtedness,  the  Loan  Parties  and  the  Administrative  Agent  from  time  to  time,  in  form  and  substance reasonably satisfactory to the Administrative Agent.         “subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation,  limited liability company, partnership, association or other entity (a) of which securities or other  ownership interests representing more than 50% of the ordinary voting power (or, in the case of a  partnership, more than 50% of the voting power general partnership interests) are, as of such date,  owned, controlled or held; or (b) in which, as of such date, the parent is the controlling general  partner or otherwise possesses the ability (without the consent of any other Person but giving effect  to any contractual arrangements with third Persons) to control at least a majority of the directors  (or the functional equivalent) of such Person (whether by the parent or one or more subsidiaries of  the parent or by the parent and one or more subsidiaries of the parent).                                          50    





 






         “Subsidiary” means any direct or indirect subsidiary of the Company or a Loan Party, as  applicable;  provided  that  notwithstanding  the  foregoing,  in  no  event  will  any  Securitization  Subsidiary be considered a Subsidiary for purposes of Article VII.          “Successor Company” has the meaning assigned to such term in Section 6.03(b)(vi)(B)(2).         “Supported Loan Guarantor” means, at any time, a Loan Guarantor that, at such time, is  not an “eligible contract participant” as defined in Section 1a(18) of the Commodity Exchange Act  and related regulations of the Commodities Futures Trading Commission, except by virtue of the  support of the ECP Loan Guarantors under Section 11.08.         “Swap Agreement” means any agreement or exchange-traded transaction with respect to  any swap, forward, future or derivative transaction or option or similar agreement involving, or  settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or  securities, or economic, financial or pricing indices or measures of economic, financial or pricing  risk or value or any similar transaction or any combination of these transactions; provided that no  phantom stock or similar plan providing for payments only on account of services provided by  present or former directors, officers, employees, members of management or consultants of the  Company or any of the Subsidiaries (or the estate, heirs, family members, spouse, or former spouse  of any of the foregoing) shall be a Swap Agreement.         “Swap Obligations” of a Person means any and all obligations of such Person, whether  absolute  or  contingent  and  howsoever  and  whensoever  created,  arising,  evidenced  or  acquired  (including all renewals, extensions and modifications thereof and substitutions therefor), under (a)  any and all Swap Agreements; and (b) any and all cancellations, buy backs, reversals, terminations  or assignments of any Swap Agreement transaction.         “Swingline Exposure” means, at any time, the sum of the aggregate outstanding Swingline  Loans at such time.  The Swingline Exposure of any Revolving Lender at any time shall be its  Applicable Percentage of the aggregate Swingline Exposure at such time.         “Swingline Lender” means CoBank in its capacity as lender of Swingline Loans hereunder.         “Swingline Loan” means a Loan made pursuant to Section 2.05.         “Swingline  Note”  means  a  promissory  note  of  the  Borrowers  that  is  payable  to  the  Swingline Lender, in substantially the form of Exhibit E-2, evidencing the aggregate Indebtedness  of the Borrowers to the Swingline Lender resulting from outstanding Swingline Loans, and also  means all other promissory notes accepted from time to time in substitution therefor or renewal  thereof.         “Tax Distribution” means, with respect to any Person, any dividend or other distribution to  any direct or indirect member of an affiliated group that files a consolidated U.S. Federal tax return  with such Person, in accordance with one of the tax sharing agreements set forth on Schedule 1.01  or any other tax sharing agreement or similar arrangement in each case in an amount not in excess  of the amount that such Person (or such Person and its subsidiaries) would have been required to  pay in respect of Federal, State or local Taxes, as the case may be, in respect of such year if such  Person had paid such Taxes directly as a stand-alone taxpayer (or on behalf of a stand-alone group).                                         51    





 






         “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings  (including backup withholding), assessments, fees or other charges imposed by any Governmental  Authority, including any interest, additions to tax or penalties applicable thereto.          “Term Exposure” means, with respect to any Lender at any time, the outstanding principal  amount of Term Loans of such Lender at such time.         “Term  Lenders”  means,  as  of  any  date  of  determination,  Lenders  having  a  Term  Loan  Commitment or outstanding Term Loans.         “Term Loan Commitment” means (a) as to Term Lender, the aggregate commitment of  such Term Lender to make Term Loans as set forth in the Commitment Schedule or in the most  recent Assignment and Assumption executed by such Term Lender and (b) as to all Term Lenders,  the  aggregate  commitment  of  all  Term  Lenders  to  make  Term  Loans,  which  aggregate  commitment shall equal $500,000,000 on the Effective Date and, in the case of clauses (a) and (b)  herein, as such commitment may be increased from time to time pursuant to Section 2.10.         “Term Loans” means Term Loans extended by the Term Lenders to the Borrowers pursuant  to Section 2.01(b) and Section 2.10.         “Term  Note”  means  a  promissory  note  of  the  Borrowers  that  is  payable  to  any  Term  Lender, in substantially the form of Exhibit E-3, evidencing the aggregate Indebtedness of the  Borrowers to such Term Lender resulting from outstanding Term Loans, and also means all other  promissory notes accepted from time to time in substitution therefor or renewal thereof.         “Test Period” means the applicable period for testing the financial covenant set forth in  Section 6.13.         “Title  Insurance  Company”  means  Chicago  Title  Insurance  Company  or  any  other  nationally reputable title insurance company that is retained by the Borrowers and is reasonably  acceptable to the Administrative Agent.         “To-Ricos” means To-Ricos, Ltd., a Bermuda company.         “To-Ricos Distribution” means To-Ricos Distribution, Ltd., a Bermuda company.         “Total  Indebtedness”  means,  at  any  date,  the  aggregate  principal  amount  of  all  Indebtedness  of  the  Company  at  such  date,  determined  on  a  consolidated  basis,  to  the  extent  required  to  be  reflected  in  the  “Liabilities”  section  of  the  consolidated  balance  sheet  of  the  Company (it being understood that all current intercompany liabilities shall be excluded whether  shown on the consolidated balance sheet or excluded therefrom on a net basis).         “Transactions”  means,  collectively,  the  execution, delivery  and  performance  by  the  Borrowers of this Agreement, the initial borrowing of Loans and other credit extensions on the  Effective Date, the use of the proceeds thereof, the PPC Refinancing, and the issuance of Letters  of Credit hereunder.                                           52    





 






         “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of  interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to  the Adjusted LIBO Rate or the Base Rate.         “UCC” means the Uniform Commercial Code as in effect from time to time in the State of  New York or any other state the laws of which are required to be applied in connection with the  issue of perfection of security interests.         “Undisclosed Administration” means, in relation to any solvent Person, the precautionary  appointment  of  an  administrator,  conservator,  trustee,  custodian  or  other  similar  official  by  a  supervisory authority or regulator under or based on the law in the country where such Person is  subject to home jurisdiction supervision if applicable law requires that such appointment is not to  be publicly disclosed.         “United States” or “U.S.” means the United States.         “U.S. Borrower” means any Borrower that is a U.S. Person.         “U.S. Guaranty” means Article X of this Agreement.         “U.S. LC Collateral Account” has the meaning assigned to such term in Section 2.06(j).         “U.S. Loan Guarantor” means, individually or collectively as the context may require,  each  Person (other than the Company and any Bermuda Loan Party) that guarantees the payment of the  Guaranteed Obligations pursuant to Article X hereof and any other Person that becomes a U.S.  Loan  Guarantor  pursuant  to  Section  5.13(a)  and  any other  U.S.  Persons  from  time  to  time  becoming U.S. Loan Guarantors hereunder pursuant to Section 9.02(e), but excluding any U.S.  Persons who from time to time cease to be U.S. Loan Guarantors hereunder pursuant to Section  9.02(f).         “U.S. Loan Parties” means the Company and the U.S. Loan Guarantors and their successors  and assigns.         “U.S. Obligations” means all unpaid principal of and accrued and unpaid interest on the  Loans, all LC Exposure, all accrued and unpaid fees and all expenses, reimbursements, indemnities  and other obligations of the U.S. Loan Parties to the Lenders or to any Lender, the Agents, any  Issuing Bank with respect to a Letter of Credit or any indemnified party arising under the Loan  Documents.         “U.S.  Person”  means  any  Person  that  is  a  “United  States  Person”  as  defined  in  Section 7701(a)(30) of the Code.         “U.S.  Secured  Obligations”  means  (a)  all  U.S.  Obligations,  and  (b)  all  Bank  Product  Obligations of the U.S. Loan Parties; provided, further, that the “Bank Product Obligations” of a  U.S. Loan Party shall exclude any Excluded Swap Obligations with respect to such U.S. Loan  Party.                                           53    





 






         “U.S. Security Agreement” means that certain U.S. Pledge and Security Agreement dated  as of February 11, 2015 by and among the U.S. Loan Parties and the Administrative Agent (as  successor-in-interest to Rabobank as administrative agent), for the benefit of the Secured Parties  as  ratified  and  reaffirmed  by  the  U.S.  Loan  Parties  on  the  Effective  Date  pursuant  to  the  Reaffirmation  Agreement,  and  any  other  pledge  or  security  agreement  entered  into,  after  the  Effective Date by any other U.S. Loan Party (as required by this Agreement or any other Loan  Document), or any other Person.         “U.S. Tax Compliance Certificate” has the meaning specified in Section 2.18(g).         “Value  of  Eligible  Inventory”  means,  at  any  given  time,  (a)  with  respect  to  Eligible  Inventory consisting of feed grains, prepaid grain in transit, feed and feed ingredients, dressed  broiler chickens, commercial eggs, breeder hens, breeder cockerels, breeder pullets, commercial  hens, commercial pullets, hatching eggs, live broiler chickens and prepared food products, the  standard and/or moving average cost determined for such Eligible Inventory, consistently applied  in accordance with GAAP; and (b) with respect to Eligible Inventory consisting of vaccines on the  farm,  the  moving  average  cost  determined  for  such  inventory  basis,  consistently  applied  in  accordance with GAAP.         “Voting Participant” has the meaning assigned to such term in Section 9.04(f).         “Voting Participant Notification” has the meaning assigned to such term in Section 9.04(f).         “Wal-Mart” means Wal-Mart Stores, Inc., a Delaware corporation.         “Weekly Reporting Period” means any period (a) during which any Default or any Event  of Default has occurred and is continuing, or (b) that constitutes a Minimum Availability Period;  provided that if the circumstances described in clause (a) or (b), as applicable, shall occur and  cease  to  exist  twice  during  any  calendar  year,  then  any  subsequent  Weekly  Reporting  Period  occurring during such calendar year shall continue through the end of such calendar year.         “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete  or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle  E of Title IV of ERISA.          “Withholding Agent” means any Loan Party and the Administrative Agent.         “Write-Down  and  Conversion  Powers”  means,  with  respect  to  any  EEA  Resolution  Authority, the write-down and conversion powers of such EEA Resolution Authority from time to  time under the Bail-In Legislation for the applicable EEA Member Country, which write-down  and conversion powers are described in the “EU Bail-In Legislation Schedule.”         SECTION 1.02.  Classification  of  Loans  and  Borrowings.   For  purposes  of  this  Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by  Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Revolving Loan”).   Borrowings also may be classified and referred to by Class (e.g., a “Revolving Borrowing”) or by  Type  (e.g.,  a  “Eurodollar  Borrowing”)  or  by  Class  and  Type  (e.g.,  a  “Eurodollar  Revolving  Borrowing”).                                         54    





 






         SECTION 1.03.  Terms Generally.  The definitions of terms herein shall apply equally to  the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun  shall  include  the  corresponding  masculine,  feminine  and  neuter  forms.   The  words  “include”,  “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.   The word “will” shall be construed to have the  same meaning and  effect as the word  “shall”.   Unless  the  context  requires  otherwise  (a)  any  definition  of  or  reference  to  any  agreement,  instrument or other document herein shall be construed as referring to such agreement, instrument  or other document as amended, restated, amended and restated, or otherwise modified from time  to  time  (subject  to  any  restrictions  on  such  amendments,  restatements,  amendments  and  restatements or other modifications set forth herein); (b) any reference herein to any Person shall  be construed to include such Person’s successors and assigns, to the extent such successors and  assigns are permitted hereunder and under the other  Loan Documents; (c) the words “herein”,  “hereof”  and  “hereunder”,  and  words  of  similar  import,  shall  be  construed  to  refer  to  this  Agreement in its entirety and not to any particular provision hereof; (d) all references herein to  Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,  and  Exhibits  and  Schedules  to,  this  Agreement;  (e) the  words  “asset”  and  “property”  shall  be  construed to have the same meaning and effect and to refer to any and all tangible and intangible  assets and properties, including cash, securities, accounts and contract rights; and (f) any reference  to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as  amended, modified or supplemented from time to time, together with all rules, regulations and  interpretations thereunder or related thereto.  A Default or Event of Default shall be deemed to  exist at all times during the period commencing on the date that such Default or Event of Default  occurs to the date on which such Default or Event of Default is waived by the Administrative  Agent pursuant to this Agreement or, in the case of a Default, is cured (i) within any period of cure  expressly provided for in this Agreement (in the case of any Default occurring other than pursuant  to paragraph (f), (g) or (k) of Article VII) or (ii) prior to time that any Lender Party exercises any  remedies under any Loan Document (in the case of any Default or Event of Default occurring  pursuant to paragraph (f), (g) or (k) of Article VII); provided that the Borrower Representative  may exercise its right to cure any such Default or Event of Default only if it has provided notice  of such Default to the Administrative Agent to the extent required pursuant to Section 5.02(a); and  an  Event  of  Default  shall  “continue”  or  be  “continuing”  until  such  Event  of  Default  has  been  waived by the Administrative Agent.         SECTION 1.04.  Accounting  Terms;  GAAP.   Except  as  otherwise  expressly  provided  herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP,  as in effect from time to time; provided that (a) all determinations of whether the Borrowers are in  compliance with the covenant set forth in Section 6.13 shall be made in accordance with GAAP  consistently applied in accordance with the financial statements for the fiscal year of the Company  ended  December  31,  2017  and  (b)  if  the  Borrower  Representative  notifies  the  Administrative  Agent that the Borrowers request an amendment to any provision hereof to reflect the effect of any  change occurring after the Effective Date in GAAP or in the application thereof on the operation  of such provision (or if the Administrative Agent notifies the Borrower Representative that the  Required Lenders request an amendment to any provision hereof for such purpose), regardless of  whether any such notice is given before or after such change in GAAP or in the application thereof,  then  the  Borrower  and  the  Administrative  Agent  shall  negotiate  in  good  faith  to  amend  such  covenant and related definitions (subject to the approval of the Required Lenders) to preserve the  original intent thereof in light of such changes in GAAP or in the application thereof; provided                                         55    





 






   that such provision shall be interpreted on the basis of GAAP in accordance with clause (a) above  until  such  notice  shall  have  been  withdrawn  or  such  provision  shall  have  been  amended  in  accordance herewith.  Notwithstanding the foregoing, all financial statements delivered hereunder  shall be prepared, and all financial covenants herein shall be calculated, without giving effect to  any election under Statement of Accounting Financial Standards 159 (or any similar accounting  principle) permitting a Person to value its financial liabilities at the fair value thereof.         SECTION 1.05.  Timing of Payment or Performance.  Except as set forth in the proviso  to the definition of “Interest Period”, when the payment of any obligation or performance of any  covenant, duty or obligation is stated to be due or performance required on a day which is not a  Business Day, the date of such payment or performance shall extend to the immediately succeeding  Business Day and, in respect of payment, such extension of time shall be reflected in computing  interest or fees, as the case may be.                                     ARTICLE II                                                                            THE CREDITS         SECTION 2.01.  Commitments.  Subject to the terms and conditions set forth herein, (a)  each  Revolving  Lender,  severally  and  not  jointly,  agrees  to  make  Revolving  Loans  to  the  Borrowers from time to time during the Availability Period in an aggregate principal amount that  will  not  result  in  (i)  such  Lender’s  Revolving  Exposure  exceeding  such  Lender’s  Revolving  Commitment or (ii) the Aggregate Revolving Exposure exceeding (x) the aggregate Revolving  Commitments, or (y) solely during a Borrowing Base Period, the lesser of the aggregate Revolving  Commitments and the Borrowing Base, subject to the Administrative Agent’s authority, in its sole  discretion, to make Protective Advances pursuant to the terms of Section 2.04; and (b) each Term  Lender, severally and not jointly, agrees to make Term Loans to the Borrowers on the Effective  Date  in  an  amount  not  to  exceed  each  such  Lender’s Term  Loan  Commitment.   Within  the  foregoing  limits  and  subject  to  the  terms  and  conditions  set  forth  herein,  the  Borrowers  may  borrow, prepay and reborrow Revolving Loans.  Amounts repaid in respect of Term Loans may  not be reborrowed.         SECTION 2.02.  Loans and Borrowings.  (a) Each Loan (other than a Swingline Loan)  shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the  Lenders ratably in accordance with their respective Commitments of the applicable Class.  Any  Protective Advance and any Swingline Loan shall be made in accordance with the procedures set  forth in Sections 2.04 and 2.05, respectively.  The Term Loans shall amortize as set forth in Section  2.11.               (b)   Subject to Section 2.14, (i) each Borrowing of Revolving Loans shall be        comprised entirely of Base Rate Loans or Eurodollar Loans and (ii) any portion of the Term        Loan  may  be  comprised  of  Base  Rate  Loans  or  Eurodollar  Loans,  in  each  case  as  the        Borrower  Representative  may  request  in  accordance  herewith;  provided  that  unless  the        Administrative Agent receives a funding indemnity letter from Borrower Representative        in form and substance satisfactory to the Administrative Agent at least three Business Days        prior to the Effective Date, all Borrowings made on the Effective Date must be made as        Base Rate Borrowings but may be converted into Eurodollar Borrowings in accordance                                         56    





 






         with Section 2.08.  Each Swingline Loan shall be a Base Rate Loan.  Each Lender at its        option  may  make  any  Eurodollar  Loan  by  causing  any domestic  or  foreign  branch  or        Affiliate of such Lender to make such Loan; provided that any exercise of such option shall        not affect the obligation of the Borrowers to repay such Loan in accordance with the terms        of this Agreement.               (c)   Subject to Section 2.01(b), at the commencement of each Interest Period for        any Borrowing of a Eurodollar Revolving Loan, such Borrowing shall be in an aggregate        amount that is an integral multiple of $1,000,000 and not less than $5,000,000.  Subject to        Section 2.01(b), at the time that any Borrowing of a Base Rate Revolving Loan is made,        converted or continued, such Borrowing shall be in an aggregate amount that is an integral        multiple of $1,000,000 and not less than $5,000,000; provided that each Borrowing of a        Base Rate Revolving Loan may be in an aggregate amount that is equal to the entire unused        balance  of  the  aggregate  Revolving  Commitments  or  that  is  required  to  finance  the        reimbursement of an LC Disbursement as contemplated by Section 2.06(e), the repayment        of  a  Protective  Advance  as  contemplated  by  Section 2.04(a)  or  the  repayment  of  a        Swingline Loan as contemplated by Section 2.05(c).  Each Swingline Loan shall be in any        amount requested by the Borrower Representative.  Borrowings of more than one Type        and Class may be outstanding at the same time; provided that there shall not at any time be        more than a total of 10 Eurodollar Borrowings outstanding.                (d)   Notwithstanding  any  other  provision  of  this  Agreement,  the  Borrower        Representative  shall  not  be  entitled  to  request,  or  to  elect  to  convert  or  continue,  any        Borrowing if the Interest Period requested with respect thereto would end after the Maturity        Date.         SECTION 2.03.  Requests  for  Borrowings.   To  request  a  Borrowing,  the  Borrower  Representative  shall  notify  the  Administrative  Agent  of  such  request  in  a  written  Borrowing  Request signed by the Borrower Representative and delivered by electronic mail or facsimile (a) in  the  case  of  a  Eurodollar  Borrowing,  not  later  than 10:00  a.m.,  Denver,  Colorado  time,  three  Business  Days  before  the  date  of  the  proposed  Borrowing;  or  (b)  in  the  case  of  a  Base  Rate  Borrowing,  not  later  than  10:00  a.m.,  Denver,  Colorado  time,  on  the  date  of  the  proposed  Borrowing.   Each  Borrowing  Request  shall  be  irrevocable  and  shall  specify  the  following  information in compliance with Section 2.01:                     (i)   the name of the applicable Borrower;                     (ii)  the aggregate amount of the requested Borrowing and a breakdown              of the separate wires comprising such Borrowing;                     (iii)  the date of such Borrowing, which shall be a Business Day;                     (iv)  whether  such  Borrowing  is  to  be  a  Base  Rate  Borrowing  or  a              Eurodollar Borrowing; and                                           57    





 






                     (v)   in the case of a Eurodollar Borrowing, the initial Interest Period to              be applicable thereto and the last day of such Interest Period, which shall be a period              contemplated by the definition of the term “Interest Period”.         If  no  election  as  to  the  Type  of  Revolving  Borrowing  is  specified,  then  the  requested  Revolving Borrowing shall be a Base Rate  Borrowing.   If no  Interest Period is specified with  respect to any requested Eurodollar Revolving Borrowing, then the applicable Borrower(s) shall  be deemed to have selected an Interest Period of one month’s duration.  Promptly following receipt  of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise  each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of  the requested Borrowing.         SECTION 2.04.  Protective Advances.  (a) Subject to the limitations set forth below, the  Administrative Agent is authorized by the Borrowers and the Lenders, from time to time in the  Administrative Agent’s  sole discretion (but with absolutely no obligation), to make Revolving  Loans to the Borrowers, on behalf of all Lenders, which the Administrative Agent, in its Permitted  Discretion, deems necessary or desirable (i) to preserve or protect the Collateral, or any portion  thereof; (ii) to enhance the likelihood of, or maximize the amount of, repayment of the Loans and  other Obligations; or (iii) to pay any other amount chargeable to or required to be paid by the  Borrowers pursuant to the terms of this Agreement, including payments of reimbursable expenses  (including costs, fees and expenses as described in Section 9.03) and other sums payable under the  Loan Documents (any of such Revolving Loans are herein referred to as “Protective Advances”);  provided that the aggregate amount of Protective Advances outstanding at any time shall not at  any time exceed 5% of the aggregate Revolving Commitments; and provided, further, that the  aggregate amount of outstanding Protective Advances plus  the Aggregate Revolving Exposure  shall not exceed the aggregate Revolving Commitments.  Protective Advances may be made even  if  the  conditions  precedent  set  forth  in  Section  4.02  have  not  been  satisfied.   The  Protective  Advances shall be secured by the Liens in favor of the Administrative Agent (for the benefit of the  Secured  Parties)  in  and  to  the  Collateral  of  the  U.S.  Loan  Parties  (in  the  case  of  Protective  Advances made to the Company) or the Collateral of all the Loan Parties (in the case of Protective  Advances made to the Bermuda Borrowers) and shall constitute U.S. Secured Obligations (in the  case of Protective Advances made to the Company) or Bermuda Secured Obligations (in the case  of Protective Advances made to the Bermuda Borrowers).  All Protective Advances shall be Base  Rate Borrowings.  The Administrative Agent’s authorization to make Protective Advances may be  revoked at any time by the Required Lenders.  Any such revocation must be in writing and shall  become effective prospectively upon the Administrative Agent’s receipt thereof.  At any time that  there is sufficient Availability and the conditions precedent set forth in Section 4.02 have been  satisfied, the Administrative Agent may request the Revolving Lenders to make a Revolving Loan  to  repay  a  Protective  Advance.   At  any  other  time  the  Administrative  Agent  may  require  the  Lenders to fund their risk participations described in Section 2.04(b).               (b)   Upon  the  making  of  a  Protective  Advance  by  the  Administrative  Agent        (whether  before  or  after  the  occurrence  of  a  Default),  each  Revolving  Lender  shall  be        deemed,  without  further  action  by  any  party  hereto,  to  have  unconditionally  and        irrevocably  purchased  from  the  Administrative Agent  without  recourse  or  warranty,  an        undivided  interest  and  participation  in  such  Protective  Advance  in  proportion  to  its        Applicable Percentage.  From and after the date, if any, on which any Revolving Lender is                                         58    





 






         required  to  fund  its  participation  in  any  Protective  Advance  purchased  hereunder,  the        Administrative Agent shall promptly distribute to such Revolving Lender, such Revolving        Lender’s Applicable Percentage of all payments of principal and interest and all proceeds        of Collateral received by the Administrative Agent in respect of such Protective Advance.         SECTION 2.05.  Swingline  Loans.   (a)  Subject  to  the  terms  and  conditions  set  forth  herein, the Swingline Lender agrees to make Swingline Loans to the Borrowers, from time to time  during the Availability Period, in an aggregate principal amount at any time outstanding that will  not  result  in  (i)  the  aggregate  principal  amount  of  outstanding  Swingline  Loans  exceeding  $75,000,000 or (ii) the sum of the Aggregate Revolving Exposure exceeding (x) the aggregate  Revolving  Commitments,  or  (y)  during  a  Borrowing  Base  Period,  the  lesser  of  the  aggregate  Revolving Commitments and the Borrowing Base, in each case both before and immediately after  giving effect to such Swingline Loan; provided that the Swingline Lender shall not be required to  make a Swingline Loan to refinance an outstanding Swingline Loan.  Within the foregoing limits  and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and  reborrow Swingline Loans.               (b)   To request a Swingline Loan, the Borrower Representative shall notify the        Administrative Agent of such request by electronic mail or facsimile, not later than 2:00        p.m.,  Denver,  Colorado  time  (or  such  shorter  time  period  as  may  be  acceptable  to  the        Administrative Agent in its sole discretion), on the day of a proposed Swingline Loan.         Each such notice shall be irrevocable and shall specify the requested date (which shall be        a Business Day) and amount of the requested Swingline Loan.  The Administrative Agent        will promptly advise the Swingline Lender of any such notice received from the Borrower        Representative.  The Swingline Lender shall make each Swingline Loan available to the        Borrowers by means of a credit to the Funding Account(s) (or, in the case of a Swingline        Loan made to finance the reimbursement of an LC Disbursement as provided in Section        2.06(e), by remittance to the applicable Issuing Bank).               (c)   Upon  the  making  of  a  Swingline  Loan  (whether  before  or  after  the        occurrence  of  a  Default  or  Event  of  Default  and  regardless  of  whether  any  Revolving        Lender  is  then  required  to  fund  its  Applicable  Percentage  of  the  Swingline  Exposure        pursuant  to  Section  2.05(d)),  each  Revolving  Lender  shall  be  deemed,  without  further        action by any party hereto, to have unconditionally and irrevocably purchased from the        Swingline Lender or the Administrative Agent, as the case may be, without recourse or        warranty, an undivided interest and participation in such Swingline Loan in proportion to        its  Applicable  Percentage  of  the  Revolving  Commitment.   Each  Revolving  Lender        acknowledges  and  agrees  that  its  obligation  to  acquire  participations  pursuant  to  this        paragraph in respect of Swingline Loans is absolute and unconditional and shall not be        affected by any circumstance whatsoever, including any amendment, renewal or extension        of any Swingline  Loan  or the occurrence and  continuance of a  Default or reduction or        termination  of  the  Revolving  Commitment,  and  that  each  such  payment  shall  be  made        without  any  offset,  abatement,  withholding  or  reduction  whatsoever.   The  Swingline        Lender or the Administrative Agent may, at any time, require the Revolving Lenders to        fund their participations.  From and after the date, if any, on which any Revolving Lender        is  required  to  fund  its  participation  in  any  Swingline  Loan  purchased  hereunder,  the        Administrative Agent shall promptly distribute to such Lender, such Lender’s Applicable                                         59    





 






         Percentage of all payments of principal and interest and all proceeds of Collateral received        by the Administrative Agent in respect of such Loan.                (d)   Promptly following (i) notice by the Administrative Agent to any Revolving        Lender of the occurrence of any Event of Default or (ii) any request therefor (which request        the Swingline Lender may make from time to time in its sole and absolute discretion) by        the Swingline Lender to the Administrative Agent (which request the Administrative Agent        shall promptly forward to each Revolving Lender), each Revolving Lender shall make a        Revolving  Loan  in  a  principal  amount  equal  to  such Revolving  Lender’s  Applicable        Percentage of the Swingline Exposure then outstanding.  Each Revolving Lender receiving        any such notice or request shall wire transfer, at or before 2:00 p.m., Denver, Colorado        time, on the Business Day that it receives such notice or request immediately available        funds  in  an  amount  equal  to  such  Revolving  Lender’s  Applicable  Percentage  of  the        Swingline Exposure specified in such notice or request to the account of the Administrative        Agent most recently designated for such purpose by notice to the Revolving Lenders, and        the Administrative Agent shall promptly pay over such amounts to the Swingline Lender        for application to the outstanding Swingline Loans; provided that if any  such notice or        request is received by a Revolving Lender after 12:00 noon, Denver, Colorado time, on        any Business Day, such amounts shall not be required to be so wire transferred until 2:00        p.m., Denver, Colorado time, on the next following Business Day.         SECTION 2.06.  Letters of Credit.  (a) General.  Subject to the terms and conditions set  forth herein, the Borrower Representative may request the issuance of Letters of Credit for its own  account or for the account of another Borrower, pursuant to a written Issuance Request, at any  time  and  from  time  to  time  during  the  Availability Period.   In  the  event  of  any  inconsistency  between the terms and conditions of this Agreement and the terms and conditions of any Issuance  Request, form of letter of credit application or other agreement submitted by the Borrowers to, or  entered into by the Borrowers with, an Issuing Bank relating to any Letter of Credit, the terms and  conditions of this Agreement shall control.               (b)   Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.         To request the issuance of a Letter of Credit (or the amendment, renewal or extension of        an outstanding Letter of Credit), the Borrower Representative shall deliver via electronic        mail or facsimile to the Issuing Bank that it may  request issue the applicable  Letter of        Credit  and  the  Administrative  Agent  (reasonably  in advance  of  the  requested  date  of        issuance, amendment, renewal or extension) a written Issuance Request.  Each such written        Issuance Request shall specify the date on which such Letter of Credit is to expire (which        shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the        name  and  address  of  the  beneficiary  thereof  and  such  other  information  as  shall  be        necessary to prepare, amend, renew or extend such Letter of Credit.  It is understood that        the reinstatement of all  or a portion of a  Letter  of Credit in accordance  with the terms        thereof  following  a  drawing  thereunder  shall  not  constitute  an  amendment,  renewal  or        extension  of  such  Letter  of  Credit.   If  requested  by  the  applicable  Issuing  Bank,  the        applicable Borrower also shall submit a letter of credit application on such Issuing Bank’s        standard form in connection with any request for a Letter of Credit.  No Issuing Bank shall        agree to issue, amend, renew or extend a Letter of Credit if, after giving effect to such        issuance,  amendment,  renewal  or  extension  (i)  the  LC  Exposure  shall  exceed                                         60    





 






               $125,000,000,  (ii)  the  Aggregate  Revolving  Exposure  shall  exceed  (x)  the  aggregate  Revolving  Commitments,  or  (y)  during  a  Borrowing  Base  Period,  the  lesser  of  the  aggregate Revolving Commitments and the Borrowing Base, or (iii) the conditions set forth  in Section 4.02 have not been satisfied.         (c)   Expiration Date.  Each Letter of Credit shall expire at or prior to the close  of business on the earlier of (i) the date one year after the date of the issuance of such Letter  of Credit (or, in the case of any renewal or extension thereof, one year after such renewal  or extension) and (ii) the date that is five Business Days prior to the Maturity Date with  respect to the Revolving Loans; provided that any Letter of Credit with a one-year tenor  may provide for the renewal thereof for additional one-year periods (which shall not in any  event extend beyond the date that is five Business Days prior to the Maturity Date with  respect to the Revolving Loans) under customary “evergreen” provisions.          (d)   Participations.  By the issuance of a Letter of Credit (or an amendment to a  Letter of Credit increasing the amount thereof) and without any further action on the part  of any Issuing Bank or the Revolving Lenders, the applicable Issuing Bank hereby grants  to each Revolving Lender, and each Revolving Lender hereby acquires from the applicable  Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable  Percentage of the aggregate amount available to be drawn under such Letter of Credit.  In  consideration  and  in  furtherance  of  the  foregoing, each  Revolving  Lender  hereby  absolutely and unconditionally agrees to pay to the Administrative Agent, for the account  of  the  applicable  Issuing  Bank,  such  Lender’s  Applicable  Percentage  of  each  LC  Disbursement made by such Issuing Bank and not reimbursed by the Borrowers on the date  due as provided in paragraph (e) of this Section, or of any reimbursement payment required  to be refunded to the Borrowers for any reason.  Each Revolving Lender acknowledges and  agrees that its obligation to acquire participations pursuant to this paragraph in respect of  Letters  of  Credit  is  absolute  and  unconditional  and  shall  not  be  affected  by  any  circumstance whatsoever, including any amendment, renewal or extension of any Letter of  Credit or the occurrence and continuance of a Default or reduction or termination of the  Revolving Commitments, and that each such payment shall be made without any offset,  abatement, withholding or reduction whatsoever.         (e)   Reimbursement.  If any Issuing Bank shall make any LC Disbursement in  respect of a Letter of Credit, the Borrowers shall, subject to the terms hereof, reimburse  such LC Disbursement by paying to the Administrative Agent an amount equal to such LC  Disbursement not later than 10:00 a.m., Denver, Colorado time, on the Business Day that  the Borrower Representative receives notice of such LC Disbursement, if such notice is  received  prior  to  8:00  a.m.,  Denver,  Colorado  time,  on  such  Business  Day  (or,  if  the  Borrower Representative receives notice of such LC Disbursement after 8:00 a.m., Denver,  Colorado time, on any Business Day, by 10:00 a.m., Denver, Colorado time, on the next  following Business Day); provided that the Borrower Representative may, subject to the  conditions to borrowing set forth herein, request in accordance with Section 2.03 or 2.05  that such payment be financed with a Base Rate Revolving Borrowing or Swingline Loan  in an equivalent amount and, to the extent so financed, the Borrowers’ obligation to make  such  payment  shall  be  discharged  and  replaced  by  the  resulting  Base  Rate  Revolving  Borrowing or Swingline Loan (or applicable portion thereof).  If the Borrowers fail to make                                   61                





 






               such payment when due, the Administrative Agent shall notify each Revolving Lender of  the  applicable  LC  Disbursement,  the  payment  then  due  from  the  Borrowers  in  respect  thereof  and  such  Lender’s  Applicable  Percentage  thereof,  and  the  Bermuda  Borrowers  shall have no obligation to reimburse any Person with respect to any LC Disbursement in  respect  of  a  Letter  of  Credit  that  does  not  constitute  a  Bermuda  Obligation.   Promptly  following receipt of such notice, each Revolving Lender shall pay to the Administrative  Agent its Applicable Percentage of the payment then due from the Borrowers, in the same  manner  as  provided  in  Section  2.07  with  respect  to Loans  made  by  such  Lender  (and  Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the Revolving  Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank  the amounts so received by it from the Revolving Lenders.  Promptly following receipt by  the Administrative Agent of any payment from the Borrowers pursuant to this paragraph,  the Administrative Agent shall distribute such payment to the applicable Issuing Bank or,  to the extent that Revolving Lenders have made payments pursuant to this paragraph to  reimburse the applicable Issuing Bank, then to such Revolving Lenders and the applicable  Issuing Bank as their interests may appear.  Any payment made by a Revolving Lender  pursuant  to  this  paragraph  to  reimburse  the  applicable  Issuing  Bank  for  any  LC  Disbursement (other than the funding of Base Rate Revolving Loans or a Swingline Loan  as contemplated above) shall not constitute a Loan and shall not relieve the Borrowers of  their obligation to reimburse such LC Disbursement.  Notwithstanding any other provision  of this Agreement, in no case shall the Bermuda Borrowers be obligated to reimburse, nor  shall  any  reimbursement  made  hereunder  by  the  Bermuda  Borrowers  be  applied  to  reimburse, an LC Disbursement which does not constitute a Bermuda Obligation.          (f)   Obligations  Absolute.   The  Borrowers’  obligation  to  reimburse  LC  Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional  and  irrevocable,  and  shall  be  performed  strictly  in  accordance  with  the  terms  of  this  Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of  validity or enforceability of any Letter of Credit or this Agreement, or any term or provision  therein; (ii) any draft or other document presented under a Letter of Credit proving to be  forged,  fraudulent  or  invalid  in  any  respect  or  any  statement  therein  being  untrue  or  inaccurate in any respect; (iii) payment by an Issuing Bank under a Letter of Credit against  presentation of a draft or other document that does not comply with the terms of such Letter  of Credit; or (iv) any other event or circumstance whatsoever, whether or not similar to any  of the foregoing, that might, but for the provisions of this Section, constitute a legal or  equitable  discharge  of,  or  provide  a  right  of  setoff  against,  the  Borrowers’  obligations  hereunder.   Neither  the  Administrative  Agent,  the  Revolving  Lenders  nor  any  Issuing  Bank, nor any of their Related Parties, shall have any liability or responsibility by reason  of or in connection with the issuance or transfer of any Letter of Credit or any payment or  failure to make any payment thereunder (irrespective of any of the circumstances referred  to  in  the  preceding  sentence),  or  any  error,  omission,  interruption,  loss  or  delay  in  transmission or delivery of any draft, notice or other communication under or relating to  any Letter of Credit (including any document required to make a drawing thereunder), any  error in interpretation of technical terms or any consequence arising from causes beyond  the  control  of  the  applicable  Issuing  Bank;  provided  that  the  foregoing  shall  not  be  construed  to  excuse  the  applicable  Issuing  Bank  from  liability  to  the  Borrowers  to  the  extent of any direct damages (as opposed to consequential damages, claims in respect of                                   62                





 






               which are hereby waived by the Borrowers to the extent permitted by Requirements of  Law) suffered by any Borrower that are caused by the applicable Issuing Bank’s failure to  exercise the standard of care hereunder to be applicable when determining whether drafts  and other documents presented under a Letter of Credit comply with the terms thereof.  The  parties hereto expressly agree that, in the absence of gross negligence or willful misconduct  on the part of an Issuing Bank (as finally determined by a court of competent jurisdiction  by  final  and  nonappealable  judgment),  such  Issuing Bank  shall  be  deemed  to  have  exercised such standard of care in each such determination.  In furtherance of the foregoing  and without limiting the generality thereof, the parties agree that, with respect to documents  presented which appear on their face to be in substantial compliance with the terms of a  Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and  make payment upon such documents without responsibility for further investigation, or  refuse to accept and make payment upon such documents if such documents are not in  strict compliance with the terms of such Letter of Credit.          (g)   Disbursement  Procedures.   The  applicable  Issuing  Bank  shall,  promptly  following its receipt thereof, examine all documents purporting to represent a demand for  payment under a Letter of Credit.  The applicable Issuing Bank shall promptly notify the  Administrative Agent and the Borrower Representative by electronic mail or facsimile of  such demand for payment and whether such Issuing Bank has made or will make an LC  Disbursement thereunder; provided that any failure to give or delay in giving such notice  shall not relieve the Borrowers of their obligation to reimburse the applicable Issuing Bank  and the Revolving Lenders with respect to any such LC Disbursement.          (h)   Interim  Interest.   If any  Issuing  Bank shall make any  LC  Disbursement,  then, unless the Borrowers shall reimburse such LC Disbursement in full on the date such  LC Disbursement is made, the unpaid amount thereof shall accrue interest, for each day  from and including the date such LC Disbursement is made to but excluding the date that  the Borrowers reimburse such LC Disbursement, at the rate per annum then applicable to  Base  Rate  Revolving  Loans;  provided  that  if  the  Borrowers  fail  to  reimburse  such  LC  Disbursement when due pursuant to paragraph (e) of this Section, then Section 2.14(e) shall  apply.  Interest accrued pursuant to this paragraph shall be for the account of the applicable  Issuing  Bank,  except  that  interest  accrued  on  and  after  the  date  of  payment  by  any  Revolving Lender pursuant to paragraph (e) of this Section to reimburse the applicable  Issuing  Bank  shall  be  for  the  account  of  such  Revolving  Lender  to  the  extent  of  such  payment.         (i)   Replacement of the Issuing Bank.  Any Issuing Bank may be replaced at  any time by written agreement among the Borrower Representative, the Administrative  Agent  and  the  successor  Issuing  Bank.   The  Administrative  Agent  shall  notify  the  Revolving Lenders of any such replacement of an Issuing Bank.  At the time any such  replacement shall become effective, the Borrowers shall pay all unpaid fees accrued for the  account  of  the  replaced  Issuing  Bank  pursuant  to  Section  2.13(b).   From  and  after  the  effective date of any such replacement, (i) the successor Issuing Bank shall have all the  rights and obligations of an Issuing Bank under this Agreement with respect to Letters of  Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be  deemed to refer to such successor or to any previous Issuing Bank, or to such successor                                   63                





 






               and all previous Issuing Banks, as the context shall require.  After the replacement of an  Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall  continue to have all the rights and obligations of an Issuing Bank under this Agreement  with respect to Letters of Credit issued by it prior to such replacement, but shall not be  required to issue additional Letters of Credit.         (j)   Cash Collateralization.  Subject to Section 2.19(b), if any Event of Default  shall  occur  and  be  continuing,  on  the  Business  Day that  the  Borrower  Representative  receives  notice  from  the  Administrative  Agent  or  the  Required  Revolving  Lenders  demanding the deposit of cash collateral pursuant to this paragraph, (i) the Company shall  deposit in an account with the Administrative Agent, in the name of the Administrative  Agent and for the benefit of the Lender Parties (the “U.S. LC Collateral Account”), an  amount in cash equal to 105% of the LC Exposure as of such date plus  accrued and unpaid  interest thereon, and (ii) without duplication under clause (i), the Bermuda Borrowers shall  deposit in an account with the Administrative Agent, in the name of the Administrative  Agent and for the benefit of the Lender Parties (the “Non-U.S. LC Collateral Account”),  an  amount  in  cash  equal  to  105%  of  the  LC  Exposure with  respect  to  the  Bermuda  Borrowers as of such date plus  accrued and unpaid interest thereon; provided that in each  case the obligation to deposit such cash collateral shall become effective immediately, and  such deposit shall become immediately due and payable, without demand or other notice  of any kind, upon the occurrence of any Event of Default with respect to any Borrower  described  in  paragraph  (h)  or  (i)  of  Article  VII.  Such  deposit  shall  be  held  by  the  Administrative  Agent  as  collateral  for  the  payment and  performance  of  the  Secured  Obligations, in the case of deposits in the U.S. LC Collateral Account, and the Bermuda  Secured Obligations, in the case of deposits in the Non-U.S. LC Collateral Account.  The  Administrative Agent shall have exclusive dominion and control, including the exclusive  right  of  withdrawal,  over  each  such  account  and  (x)  the  Company  hereby  grants  the  Administrative Agent (for the benefit of the Lender Parties) a security interest in the U.S.  LC Collateral Account to secure the Secured Obligations and (y) the Bermuda Borrowers  hereby grant the Administrative Agent (for the benefit of the Lender Parties) a security  interest in the Non-U.S. LC Collateral Account to secure the Bermuda Secured Obligations.   Other than any interest earned on the investment of such deposits, which investments shall  be  in  the  form  of  Permitted  Investments  made  at  the  option  and  sole  discretion  of  the  Administrative  Agent  (in  accordance  with  its  usual and  customary  practices  for  investments of this type) and at the Borrowers’ risk and reasonable expense, such deposits  shall not accrue interest.  Interest or profits, if any, on such investments shall accumulate  in such account.  Moneys in each such account shall be applied by the Administrative Agent  to reimburse the applicable Issuing Bank for LC Disbursements for which it has not been  reimbursed  and,  to  the  extent  not  so  applied,  shall  be  held  for  the  satisfaction  of  the  reimbursement obligations of the Company or the Bermuda Borrowers, as applicable, for  the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but  subject  to  the  consent  of  the  Required  Revolving  Lenders),  be  applied,  in  the  case  of  deposits in the U.S. LC Collateral Account, to satisfy other Secured Obligations or, in the  case of deposits in the Non-U.S. LC Collateral Account, to satisfy other Bermuda Secured  Obligations.   If  the  Borrowers  are  required  to  provide  an  amount  of  cash  collateral  hereunder as a result of the occurrence of an Event of Default, such amount (to the extent                                    64                





 






         not applied as aforesaid) shall be returned to the Borrowers within three Business Days        after all such Events of Default have been cured or waived.                (k)   Existing Letters of Credit.  On the Effective Date, each of such “Letters of        Credit” issued and outstanding under the Original Credit Agreement and listed on Schedule        2.06 shall automatically, and without any action on the part of any Person, be deemed to        be a Letter of Credit that has been issued hereunder as of the Effective Date for all purposes        hereunder and under the other Loan Documents.  Without limiting the foregoing (i) each        such letter of credit shall be included in the calculation of LC Exposure, (ii) all liabilities        of the Borrowers and the other  Loan Parties with respect to such letters of credit shall        constitute  Obligations  and  (iii)  each  Lender  shall have  reimbursement  obligations  with        respect to such letters of credit as provided in this Section 2.06.               (l)   Illegality under Letters of Credit. If, at any time, it becomes unlawful for        any  Issuing  Bank  to  comply  with  any  of  its  obligations  under  any  Letter  of  Credit        (including, but not limited to, as a result of any sanctions imposed by the United Nations,        the European Union, the Netherlands, the United Kingdom and/or the United States), the        obligations of such Issuing Bank with respect to such Letter of Credit shall be suspended        (and all corresponding rights shall cease to accrue) until such time as it may again become        lawful for such Issuing Bank to comply its obligations under such Letter of Credit, and        such Issuing Bank shall not be liable for any losses that the Loan Parties may incur as a        result.         SECTION 2.07.  Funding of Borrowings.  (a) Each Lender shall make each Loan to be  made by it hereunder on the proposed date thereof by wire transfer of immediately available funds  by 11:00 a.m. (or, in the case of Base Rate Loans made pursuant to Section 2.03(b), 12:00 noon),  Denver, Colorado time, to the account of the Administrative Agent most recently designated by it  for  such  purpose  by  notice  to  the  Lenders  in  an  amount  equal  to  such  Lender’s  Applicable  Percentage; provided that Term Loans shall be made as provided in Sections 2.01(b) and 2.02(b)  and Swingline Loans shall be made as provided in Section 2.05.  The Administrative Agent will  make such Loans available to the Borrower Representative promptly by crediting the amounts so  received, in like funds, to the Funding Account(s); provided that Base Rate Revolving Loans made  to finance the reimbursement of (i) an LC Disbursement as provided in Section 2.06(e) shall be  remitted by the Administrative Agent to the Issuing Bank and (ii) a Protective Advance shall be  retained by the Administrative Agent.               (b)   Unless the Administrative Agent shall have received notice from a Lender        prior to the proposed date of any Borrowing that such Lender will not make available to        the  Administrative  Agent  such  Lender’s  share  of  such  Borrowing,  the  Administrative        Agent  may  assume  that  such  Lender  has  made  such  share  available  on  such  date  in        accordance with paragraph (a) of this Section and may, in reliance upon such assumption,        make available to the applicable Borrower a corresponding amount.  In such event, if a        Lender  has  not  in  fact  made  its  share  of  the  applicable  Borrowing  available  to  the        Administrative Agent, then the applicable Lender and the Borrowers severally agree to pay        to the Administrative Agent forthwith on demand such corresponding amount with interest        thereon, for each day from and including the date such amount is made available to the        applicable Borrower to but excluding the date of payment to the Administrative Agent, at                                         65    





 






         (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate        reasonably determined by the Administrative Agent in accordance with banking industry        rules  on  interbank  compensation,  or  (ii)  in  the  case  of  the  Borrowers,  the  interest  rate        applicable to Base Rate Loans.  If such Lender pays such amount to the Administrative        Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.         SECTION 2.08.  Interest Elections.  (a) Each Borrowing initially shall be of the Type  specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall  have an initial Interest Period as specified in such Borrowing Request.  Thereafter, the Borrower  Representative may elect to convert such  Borrowing to a Borrowing of a different Type or to  continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods  therefor, all as provided in this Section.  The Borrower Representative may elect different options  with respect to different portions of the affected Borrowing, in which case each such portion shall  be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the  Loans comprising each such portion shall be considered a separate Borrowing.  This Section shall  not  apply  to  Swingline  Borrowings  or  Protective  Advances,  which  may  not  be  converted  or  continued.               (b)   To make an election pursuant to this Section, the Borrower Representative         shall  notify  the  Administrative  Agent  of  such  election  in  an  Interest  Election  Request         signed by the Borrower Representative and delivered by electronic mail or facsimile by the         time that a Borrowing Request would be required under Section 2.03 if the Borrowers were        requesting a Revolving Borrowing of the Type resulting from such election to be made on        the  effective  date  of  such  election.   Each  such  Interest  Election  Request  shall  be        irrevocable.               (c)   Each Interest Election Request shall specify the following information in        compliance with Section 2.02:                     (i)   the  Borrower  and  the  Borrowing  to  which  such  Interest  Election              Request applies and, if different options are being elected with respect to different              portions thereof, the portions thereof to be allocated to each resulting Borrowing              (in which case the information to be specified pursuant to paragraphs (iii) and (iv)              below shall be specified for each resulting Borrowing);                      (ii)  the  effective  date  of  the  election  made  pursuant  to  such  Interest              Election Request, which shall be a Business Day;                     (iii)  whether the resulting Borrowing is to be a Base Rate Borrowing or              a Eurodollar Borrowing; and                     (iv)  if the resulting Borrowing is a Eurodollar Borrowing, the Interest              Period to be applicable thereto after giving effect to such election and the last day              of such Interest Period, which shall be a period contemplated by the definition of              the term “Interest Period”.                                           66    





 






         If any such Interest Election Request requests a Eurodollar Borrowing but does not specify  an Interest Period, then the Borrowers shall be deemed to have selected an Interest Period of one  month’s duration.               (d)   Promptly  following  receipt  of  an  Interest  Election Request,  the        Administrative Agent shall advise each applicable Lender of the details thereof and of such        Lender’s portion of each resulting Borrowing.               (e)   If the  Borrower Representative fails to deliver a timely  Interest Election        Request  with  respect  to  a  Eurodollar  Borrowing  prior  to  the  end  of  the  Interest  Period        applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of        such  Interest  Period  such  Borrowing  shall  be  converted  to  a  Base  Rate  Borrowing.         Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is        continuing and the Administrative Agent, at the request of the Required Lenders, so notifies        the  Borrower  Representative,  then,  so  long  as  an  Event  of  Default  is  continuing  (i)  no        outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and        (ii) unless repaid, each Eurodollar Borrowing shall be converted to a Base Rate Borrowing        at the end of the Interest Period applicable thereto.         SECTION 2.09.  Termination  and  Reduction  of  Commitments.   (a)  Unless  previously  terminated, (i) the Revolving Commitment shall terminate on the Maturity Date and (ii) the Term  Loan Commitments shall terminate on the making of the Term Loans on the Effective Date.               (b)   The  Borrower  Representative  may  at  any  time  terminate  the  Revolving        Commitments in their entirety upon (i) the payment in full in cash of all outstanding Loans,        together with accrued and unpaid interest thereon and on any Letters of Credit; (ii) the        cancellation and return of all outstanding Letters of Credit (or alternatively, with respect to        such  Letters  of  Credit,  the  deposit  by  the  applicable  Borrower  in  the  applicable  LC        Collateral Accounts of cash (or, with the consent of the Administrative Agent, the Required        Lenders  and  each  applicable  Issuing  Bank,  a  back-up  standby  letter  of  credit)  equal  to        103%  of  the  LC  Exposure  as  of  such  date  in  accordance  with  Section  2.06(j);  (iii)  the        payment in full in cash of the accrued and unpaid fees; and (iv) the payment in full in cash        of  all  accrued  and  unpaid  reimbursable  expenses  and  other  Obligations  together  with        accrued and unpaid interest thereon.               (c)   The  Borrower  Representative  may  from  time  to  time  reduce  the        Commitments; provided that (i) each reduction of the Commitments shall be in an amount        that is an integral multiple of $10,000,000 and not less than $25,000,000 (or, in either case,        if less, the aggregate remaining applicable Commitment) and (ii) the Borrowers shall not        reduce the Revolving Commitments if, after giving effect to any concurrent prepayment of        the Revolving Loans in accordance with Section 2.11, the Aggregate Revolving Exposure        would exceed the aggregate Revolving Commitments.               (d)   The Borrower Representative shall notify the Administrative Agent of any        election to terminate or reduce the Commitments under paragraph (b) or (c) of this Section        at least three Business Days prior to the effective date of such termination or reduction,        specifying such election and the effective date thereof.  Promptly following receipt of any                                         67    





 






               notice, the Administrative Agent shall advise the Lenders of the contents thereof.  Each  notice  delivered  by  the  Borrower  Representative  pursuant  to  this  Section  shall  be  irrevocable; provided that a notice of termination of the Commitments delivered by the  Borrower Representative may state that such notice is conditioned upon the effectiveness  of  other  credit  facilities,  in  which  case  such  notice  may  be  revoked  by  the  Borrower  Representative (by notice to the Administrative Agent on or prior to the specified effective  date) if such condition is not satisfied.  Any termination or reduction of the Commitments  shall be permanent.  Each reduction of the Commitments shall be made ratably among the  Lenders in accordance with their respective Commitments.   SECTION 2.10.  Increase in Commitments.         (a)   After the Effective Date, the Borrowers shall have the right to increase the  aggregate  Revolving  Commitments  by  obtaining  additional  Revolving  Commitments  (“Incremental  Revolving  Commitments”)  and  the  right  to  increase  the  aggregate  Term  Loan Commitments by obtaining additional Term Loan Commitments (“Incremental Term  Commitments”),  in  each  case  from  either  one  or  more  of  the  Lenders  or  an  additional  Eligible Incremental Lender; provided that (A) any such Incremental Commitment shall be  in  a  minimum  amount  of  $25,000,000,  (B)  the  aggregate  amount  of  all  Incremental  Commitments effected pursuant hereto shall not exceed $1,250,000,000;  (C) any such new  Term  Lender  shall  have  assumed  all  of  the  rights  and  obligations  of  a  “Term  Lender”  hereunder;  (D) any such new Revolving Lender shall have assumed all of the rights and  obligations  of  a  “Revolving  Lender”  hereunder;  (E) any  such  Incremental  Revolving  Commitments shall, subject to Section 2.10(e), be on the same terms as the other Revolving  Commitments  and  any  such  Incremental  Term  Commitments  shall,  subject  to  Section  2.10(e), be on the same terms as the other Term Loans; and (F) all of the procedures and  other conditions described in this Section 2.10 shall have been satisfied.         (b)   The Borrower Representative shall request an Incremental Commitment by  delivering a notice (an “Incremental Commitment Request”) to the Administrative Agent,  who  shall  promptly  notify  the  Lenders  of  the  substance  thereof.   The  notice  by  the  Administrative Agent to the Lenders describing each Incremental Commitment Request  shall  specify  the  time  period  (to  be  determined  by the  Borrower  Representative  in  consultation with the Administrative Agent, but in no event be less than 15 Business Days  from the date of delivery by the Borrower Representative of the applicable Incremental  Commitment Request to the Administrative Agent) within which each Lender is required  to inform the Borrower Representative and the Administrative Agent whether such Lender  intends to participate in the applicable Incremental Commitment.  Each Lender shall notify  the  Administrative  Agent  within  the  required  time  period  whether  or  not  it  agrees  to  participate in the applicable Incremental Commitment and, if so, shall specify the amount  of  such  Incremental  Commitment  it  desires  to  be  allocated  to  it.   Any  Lender  not  responding  within  such  time  period  shall  be  deemed to  have  declined  to  increase  its  Commitment.   Each  determination  by  a  Lender  to  participate  in  an  Incremental  Commitment shall be made by it in its sole and absolute discretion.            (c)   The  Administrative  Agent  shall  notify  the  Borrower Representative  and   each Lender of the Lenders’ responses to each Incremental Commitment Request.  The                                   68                





 






               Borrowers may obtain the agreement of additional Eligible Incremental Lenders to become  Lenders pursuant to an Incremental Commitment Joinder Agreement, in substantially the  form of Exhibit D (each, an “Incremental Commitment Joinder Agreement”).  Each such  Eligible  Incremental  Lender  shall,  as  a  condition  to  participating  in  any  Incremental  Commitment, be required to deliver all forms, if any, that are required to be delivered by  such Eligible Incremental Lender pursuant to Section 9.04 and any other information that  the Administrative Agent requires from Lenders as a condition to becoming a party to this  Agreement.  Any Incremental Commitment shall be allocated among the existing Lenders  that  agree  to  participate  in  such  Incremental  Commitment  and  additional  Eligible  Incremental  Lenders  who  agree  to  become  Lenders  pursuant  to  an  Incremental  Commitment Joinder Agreement (in each case, up to the amount of each such Person’s  agreed participation) as determined by the Borrower Representative.            (d)   Any  amendment  hereto  solely  for  Incremental  Commitments  shall  be  in   form  and  substance  satisfactory  to  the  Administrative  Agent  and  shall  only  require  the   written signatures of the Administrative Agent, the Borrower Representative (on behalf of   the Borrowers) and the Lender(s) providing an Incremental Commitment.  As a condition   precedent  to  any  such  Incremental  Commitment,  the  Borrowers  shall  deliver  to  the   Administrative Agent (i) a certificate of each Loan Party signed by an authorized officer   of such Loan Party (x) certifying and attaching the resolutions adopted by such Loan Party   approving  or  consenting  to  such  Incremental  Commitment;  and  (y)  in  the  case  of  the   Borrowers, certifying that, before and immediately after giving effect to such increase, (A)   the representations and warranties contained in Article III and the other Loan Documents  shall be true and correct, except that such representations and warranties that relate solely  to an earlier date shall be true and correct in all material respects as of such earlier date;  (B) no Default or Event of Default shall have occurred and be continuing or would result  from any such  Incremental Commitment; and (C) at the time of and immediately  after  giving effect to each such Incremental Commitment, the Borrowers shall be in compliance  with the covenant set forth in Section 6.13 (on a Pro Forma Basis for the Test Period for  which financial statements have been delivered pursuant to Section 5.01(a) or (b) ending  immediately  preceding  such  Incremental  Commitment),  which  compliance  shall  be  evidenced by the due completion, execution and delivery of a Compliance Certificate and  based on the assumption that such Incremental Commitment was fully drawn on the first  day of such Test Period, and (ii) such opinions of counsel, evidence of flood insurance,  ratification agreements, amendments to the other Loan Documents (which amendments the  Administrative  Agent  is  authorized  to  execute  on  behalf  of  all  Lenders),  and  other  documents,  certificates  and  information  as  the  Administrative  Agent  may  reasonably  request; provided that flood insurance due diligence and flood insurance compliance shall  be reasonably satisfactory to the Administrative Agent and the Lenders whose compliance  is impacted by the relevant incremental facility.         (e)   The terms and provisions of the Loans made with respect to any Incremental   Commitments shall (i) rank pari passu in right of payment and of security with, and shall  have the same guarantees as the existing Loans; (ii) have a maturity date that is not earlier  than the Maturity Date of the Term Loans (or if Incremental Revolving Commitments, the  Revolving Loans); (iii) have a weighted average life to maturity that is no shorter than the  weighted  average  life  to  maturity  of  the  Term  Loans  (or  if  Incremental  Revolving                                   69                





 






         Commitments,  the  Revolving  Loans);  (iv)  have  a  rate  of  interest  as  set  forth  in  each        applicable  Incremental  Commitment  Joinder  Agreement;  provided  that  with  respect  to        Incremental Term Commitments, if such interest rate is greater than the interest rate on the        existing Term Loans by 0.50% or more, the interest rate on the existing Term Loans shall        be  increased  so  as  to  equal  the  interest  rate  applicable  to  the  incremental  term  Loans        comprising  such  Incremental  Term  Commitment  minus  0.50%;  and  (v)  otherwise  be        treated the same as, and not be entitled to any additional benefits than or impose any more        obligations than, the Term Loan or Revolving Loans, as applicable.                (f)   Any existing Lender that has a Note and participates in any Incremental        Commitment shall, substantially contemporaneously with the delivery of its Note to be        replaced  to  the  Borrowers,  receive  a  replacement  Note  that  evidences  the  aggregate        principal amount of its Loans outstanding hereunder.  Any new Lender requesting a Note        shall receive such  a Note in  an amount equal to the  aggregate principal  amount of the        Incremental Commitments for which its funds pursuant to the terms of this Section.               (g)   Within  a  reasonable  time  after  the  effective  date  of  any  Incremental        Commitment, the Administrative Agent shall, and is hereby authorized and directed to,        revise  the  Commitment  Schedule  to  reflect  any  Incremental  Commitment  and  shall        distribute such revised Commitment Schedule to each of the Lenders and the Borrowers,        whereupon  such  revised  Commitment  Schedule  shall  replace  the  prior  Commitment        Schedule  and  become  part  of  this  Agreement.   On  the  Business  Day  following  the        effectiveness of any such Incremental Revolving Commitment, all outstanding Revolving        Loans shall be reallocated among the  Lenders  (including  any newly  added  Lenders) in        accordance with the Lenders’ respective revised Applicable Percentages of the Revolving        Commitments.         SECTION 2.11.  Repayment  and  Amortization  of  Loans;  Evidence  of  Debt.   (a)  The  Borrowers hereby unconditionally promise to pay (i) to the Administrative Agent for the account  of each Lender the then unpaid principal amount of each Revolving Loan on the Maturity Date;  (ii) to the Administrative Agent the then unpaid amount of each Protective Advance on the earlier  of the Maturity Date and demand by the Administrative Agent; (iii) to the Swingline Lender the  then unpaid principal  amount of each Swingline  Loan on the earlier of the Maturity  Date  and  demand by the Swingline Lender.               (b)   Beginning on January 3, 2019 and continuing on the second Business Day         of each April, July, October and January thereafter, the Borrowers shall repay the Term         Loans in an amount equal to 1.25% of the original principal amount of the Term Loan         made on the Effective Date.  To the extent not previously paid, the Term Loans shall be         paid in full in cash by the Borrowers on the Maturity Date or any earlier date on which         repayment of the Loans may be due pursuant to Article VII.               (c)   [Reserved].               (d)   Each Lender shall maintain in accordance with its usual practice an account         or accounts evidencing the indebtedness of the Borrowers to such Lender resulting from                                          70    





 






         each Loan made by such Lender, including the amounts of principal and interest payable        and paid to such Lender from time to time hereunder.                (e)   The Administrative Agent shall maintain accounts in which it shall record        (i) the amount of each Loan made hereunder, the Class and Type thereof and the Interest        Period applicable thereto, (ii) the amount of any principal or interest due and payable or to        become due and payable from the Borrowers to each Lender hereunder and (iii) the amount        of any sum received by the Administrative Agent hereunder for the account of the Lenders        and each Lender’s share thereof.               (f)   The entries made in the accounts maintained pursuant to paragraphs (d) or        (e) of this Section shall be evidence, absent manifest error, of the existence and amounts        of  the  obligations  recorded  therein;  provided  that the  failure  of  any  Lender  or  the        Administrative  Agent  to  maintain  such  accounts  or  any  error  therein  shall  not  in  any        manner affect the obligation of the Borrowers to repay the Loans in accordance with the        terms of this Agreement.               (g)   Any Lender may request that Loans made by it be evidenced by a Note.  In        such event, the Borrowers shall prepare, execute and deliver to such Lender a Note payable        to  the  order  of  such  Lender  (or,  if  requested  by  such  Lender,  to  such  Lender  and  its        registered assigns).  Thereafter, the Loans evidenced by such Note and interest thereon        shall at all times (including after assignment pursuant to Section 9.04) be represented by        one or more Notes in such form payable to the order of the payee named therein (or, if such        Note is a registered note, to such payee and its registered assigns).         SECTION 2.12.  Prepayment of Loans.  (a) The Borrowers shall have the right at any  time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in  accordance with paragraph (f) of this Section and payment of any amounts that are required to be  paid pursuant to Section 2.17.               (b)   During any Borrowing Base Period, in the event and on such occasion that        the  Aggregate  Revolving  Exposure  exceeds  the  lesser  of  (A)  the  aggregate  Revolving        Commitments and (B) the Borrowing Base, the Borrowers shall promptly (but in no event        later than 8:00 a.m., Denver, Colorado time, the following Business Day) prepay (or in the        case of the LC Exposure, cash collateralize) the Revolving Loans, LC Exposure and/or        Swingline Loans in an aggregate amount equal to such excess.               (c)   In the event and on each occasion that any Net Proceeds are received by or        on behalf of  any  Loan  Party in respect of any  Prepayment Event, the  Borrowers shall,        subject to the proviso below, immediately after such Net Proceeds are received by any        Loan Party, prepay the Obligations as set forth in Section 2.12(e) below in an aggregate        amount  equal  to  100%  of  such  Net  Proceeds;  provided  that,  in  the  case  of  any  such        “Prepayment  Event”,  if,  within  365  days  after  receipt  of  such  Net  Proceeds,  the  Loan        Parties have either (x) used such Net Proceeds to acquire (or replace, construct or build)        assets useful in the business of the Loan Parties (including Permitted Acquisitions) or (y)        have a signed commitment to apply the Net Proceeds from such event (or a portion thereof)        to acquire (or replace, construct, or rebuild) assets useful in the business of the Loan Parties                                         71    





 






               (including Permitted Acquisitions), and no Default has occurred and is continuing, then no  prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds so  long as such Net Proceeds are actually reinvested by the Borrowers within 180 days after  the expiration of such 365 day period; provided, further, that if any such Net Proceeds  therefrom that have not been so applied by the end of such 180-day period, the Borrowers  shall immediately prepay the Obligations in an amount equal to such Net Proceeds that  have not been so committed or applied.         (d)   [Reserved].         (e)   All such amounts pursuant to Section 2.12(c) shall be applied, first to prepay  any Protective Advances that may be outstanding, second to prepay the Term Loans (to be  applied to installments of the Term Loans ratably in accordance with the then outstanding  amounts  thereof),  third  to  prepay  the  Swingline  Loans,  fourth  to  prepay  the  Revolving  Loans without a corresponding reduction in the Revolving Commitment and fifth to cash  collateralize outstanding LC Exposure (in an amount equal to 100% of the amount thereof)  without  a  corresponding  reduction  in  the  Revolving Commitment.   All  such  amounts  pursuant to Section 2.12(a) may be applied to prepay the Revolving Loans or the Term  Loans,  as  the  Borrower  Representative  shall  direct;  provided  that  any  amounts  applied  pursuant to Section 2.12(a) to prepay the Term Loans shall be applied to installments due  on the Term Loans in order of maturity.         (f)   The Borrower Representative shall notify the Administrative Agent (and, in  the case of prepayment of a Swingline Loan, the Swingline Lender) by electronic mail or  facsimile  of  any  prepayment  hereunder  (i)  in  the  case  of  prepayment  of  a  Eurodollar  Borrowing, not later than 12:00 noon, Denver, Colorado time, three Business Days before  the date of prepayment; (ii) in the case of prepayment of a Base Rate Borrowing, not later  than 12:00 noon, Denver, Colorado time, on the date of prepayment; or (iii) in the case of  prepayment of a Swingline Loan, not later than 2:00 p.m., Denver, Colorado time, on the  date of prepayment.  Each such notice shall be irrevocable and shall specify the prepayment  date and the principal amount of each Borrowing or portion thereof to be prepaid; provided  that  if  a  notice  of  prepayment  is  given  in  connection  with  a  conditional  notice  of  termination  of  the  Commitments  as  contemplated  by  Section  2.09,  then  such  notice  of  prepayment may be revoked if such notice of termination is revoked in accordance with  Section 2.09.  Promptly following receipt of any such notice relating to a Borrowing, the  Administrative  Agent  shall  advise  the  Lenders  of  the  contents  thereof.   Each  partial  prepayment of any Revolving Borrowing under Section 2.12(a) shall be in an amount that  would be permitted in the case of an advance of a Revolving Borrowing of the same Type  as provided in Section 2.02.  Prepayments shall be accompanied by accrued interest to the  extent required by Section 2.14.   SECTION 2.13.  Fees.         (a)   The Borrowers agree to pay to the Administrative Agent for the account of  each Revolving Lender, a commitment fee, which shall accrue at the rate per annum set  forth as describe in, or under the caption “Commitment Fee”, as applicable, in the definition  of “Applicable Rate” on the average daily amount of the Available Revolving Commitment                                   72                





 






               of  each  such  Lender  during  the  period  from  and  including  the  Effective  Date  to  but  excluding  the  date  on  which  each  such  Lender’s  Revolving  Commitment  terminates.   Commitment fees accrued through and including the last day of each calendar quarter shall  be payable on the second Business Day of each April, July, October and January of each  year and on the date on which the Revolving Commitment terminates, commencing on the  first such date to occur after the Effective Date.  All commitment fees shall be computed  on the basis of  a  year of 360 days and shall be  payable  for the actual number of days  elapsed.   Solely  for  purposes  of  determining  the  Available  Revolving  Commitment  in  connection  with  the  computation  of  commitment  fees of  the  Revolving  Lenders,  the  Revolving  Exposure  shall  be  deemed  to  exclude  the  aggregate  principal  amount  of  Swingline Loans.         (b)   The Borrowers agree to pay to the Administrative Agent, for the account of  (and to be shared pro rata among) each Revolving Lender, a participation fee with respect  to its participations in Letters of Credit, which shall accrue at the same Applicable Rate  used to determine the interest rate applicable to Eurodollar Revolving Loans on the average  daily  amount  of  such  Lender’s  applicable  LC  Exposure  (excluding  any  portion  thereof  attributable to unreimbursed LC Disbursements) during the period from and including the  Effective Date to but excluding the later of the date on which such Lender’s Revolving  Commitment terminates and the date on which such Revolving Lender ceases to have any  LC  Exposure.   In  addition,  the  Borrowers  agree  to  pay  the  applicable  Issuing  Bank  a  fronting fee with respect to each Letter of Credit, in an amount equal to the greater of (i)  0.125% of the face amount of such Letter of Credit and (ii) $1,000, payable on the date of  the issuance and any renewal or extension of such Letter of Credit (and, in the event that  the face amount of any Letter of Credit is increased after the date of issuance thereof, the  Borrowers agree to pay the applicable Issuing Bank, on the date of any such increase, an  additional fronting fee in an amount equal to the greater of (i) 0.125% of the amount by  which the face amount of such Letter of Credit has been increased and (ii) $1,000), as well  as the applicable Issuing Bank’s standard fees with respect to the issuance, amendment,  renewal  or  extension  of  any  Letter  of  Credit  or  processing  of  drawings  thereunder.   Participation fees and  fronting fees  accrued through  and including the last day  of  each  calendar quarter shall be payable on the second Business Day of each April, July, October  and January of each year, commencing on the first such date to occur after the Effective  Date;  provided  that  all  such  fees  shall  be  payable on  the  date  on  which  the  Revolving  Commitments terminate and any such fees accruing after the date on which the Revolving  Commitments terminate shall be payable on demand.  Any other fees payable to an Issuing  Bank pursuant to this paragraph shall be payable within 10 Business Days after demand.   All  participation  fees  and  fronting  fees  payable  pursuant  to  this  paragraph  (b)  shall  be  computed on the basis of a year of 360 days and shall be payable for the actual number of  days elapsed.         (c)   The Borrowers agree to pay to (i) the Administrative Agent and the other   Agents the fees set forth in the Fee Letter, and (ii) the Administrative Agent, for its own   account, any other fees payable in the amounts and at the times separately agreed upon   between the Borrowers and the Administrative Agent.                                    73                





 






               (d)   All fees payable hereunder shall be paid on the dates due, in immediately        available funds, to the Administrative Agent (or to the applicable Issuing Bank, in the case        of fees payable to it) for distribution, in the case of commitment fees and participation fees,        to the Lenders.  Fees paid shall not be refundable under any circumstances.         SECTION 2.14.  Interest.   (a)  The  Loans  comprising  each  Base  Rate Borrowing  (excluding each Swingline Loan) shall accrue interest at the Base Rate plus  the Applicable Rate.   Each Swingline Loan shall accrue interest at the Base Rate plus  the Applicable Rate minus  0.250%.               (b)   The Loans comprising each Eurodollar Borrowing shall accrue interest at        the  Adjusted  LIBO  Rate  for  the  Interest  Period  in  effect  for  such  Borrowing plus   the        Applicable Rate.               (c)   [Reserved].               (d)   Each  Protective  Advance  shall  accrue  interest  at  the  Base  Rate plus   the        Applicable Rate for Revolving Loans plus  2%.               (e)   Notwithstanding the foregoing, if  any amount payable by  the  Borrowers        under this Agreement is not paid when due, whether at stated maturity, by acceleration or        otherwise, (i) all overdue principal on outstanding Loans shall accrue interest at 2% plus         the rate otherwise applicable to such Loans as provided in the preceding paragraphs of this        Section or (ii) in the case of any other overdue amount outstanding hereunder, such amount        shall accrue interest at 2% plus  the rate that is applicable to Base Rate Loans. Upon the        request of the Required Lenders, during the occurrence and continuance of an Event of        Default, all Loans shall accrue interest at 2% plus  the rate otherwise applicable to such        Loans as provided in the preceding paragraphs of this Section.                (f)   Accrued interest on each Loan (for Base Rate Loans, accrued through the        last day of the prior calendar quarter) shall be payable in arrears on each Interest Payment        Date for such Loan and upon termination of the Commitments; provided that (i) interest        accrued pursuant to paragraph (d) or (e) of this Section shall be payable on demand, (ii) in        the event of any repayment or prepayment of any Loan, accrued interest on the principal        amount repaid or prepaid shall be payable on the date of such repayment or prepayment        and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the        current  Interest  Period  therefor,  accrued  interest on  such  Loan  shall  be  payable  on  the        effective date of such conversion.               (g)   All interest hereunder shall be computed on the basis of a year of 360 days        and shall be payable for the actual number of days elapsed.  The applicable Base Rate,        Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and        such determination shall be conclusive absent manifest error.         SECTION 2.15.  Alternate Rate of Interest.                 (a)   Inability to Determinate Rates.  If (i) the Administrative Agent shall have        determined or been instructed by the Required Lenders that adequate means do not exist        for adequately and fairly determining the cost to the Lenders, or the Adjusted LIBO Rate                                         74    





 






               or  the  LIBO  Rate  do  not  adequately  cover  the  costs of  such  Lenders,  of  making  or  maintaining  Eurodollar  Loans  or  calculating  the  same  or  (ii)  the  LIBOR  Scheduled  Unavailability Date has occurred, then, upon notice from the Administrative Agent to the  Company and the Lenders, the obligations of all Lenders under Sections 2.4 and 2.5 to  make  or  continue  any  Loans  as,  or  to  convert  any  Loans  into,  Eurodollar  Loans  shall  forthwith be suspended until the Administrative Agent shall notify the Company and the  Lenders that the circumstances causing such suspension no longer exist.          (b)   LIBOR  Replacement  Rate.   Notwithstanding  anything  to  the  contrary  contained in this Agreement or any other Loan Document, but without limiting Section  2.15(a) above, if the Administrative Agent shall have determined (which determination  shall be final and conclusive and binding upon all parties hereto), or the Company or the  Required  Lenders  notify  the  Administrative  Agent  (with,  in  the  case  of  the  Required  Lenders,  a  copy  to  the  Borrowers)  that  the  Company or  the  Required  Lenders  (as  applicable)  shall  have  determined  (which  determination  likewise  shall  be  final  and  conclusive  and  binding  upon  all  parties  hereto),  that  (i)  the  circumstances  described  in  Section 2.15(a)(i) have arisen and that such circumstances are unlikely to be temporary,  (ii) the relevant administrator of the LIBO Rate or a Governmental Authority having or  purporting to have jurisdiction over the Administrative Agent has made a public statement  identifying a specific date after which the LIBO Rate shall no longer be made available, or  used for determining interest rates for loans in the applicable currency (such specific date,  the “LIBOR Scheduled Unavailability Date”), or (iii) syndicated credit facilities among  national and/or regional banks active in leading and participating in such facilities currently  being executed, or that include language similar to that contained in this Section 2.15(b),  are being executed or amended (as applicable) to incorporate or adopt a new interest rate  to replace the LIBO Rate for determining interest rates for loans in the applicable currency,  then, reasonably promptly after such determination by the Administrative Agent or receipt  by the Administrative Agent of such notice, as applicable, the Administrative Agent and  the Company may amend this Agreement to replace the LIBO Rate with an alternate rate  of interest, giving due consideration to any evolving or then existing convention for similar  Dollar denominated syndicated credit facilities for such alternative rates of interest (any  such proposed rate, a “LIBOR Replacement Rate”), and make such other related changes  to this Agreement and the other Loan Documents as may be necessary or appropriate, in  the opinion of the Administrative Agent, to effect the provisions of this Section 2.15(b)  (provided, that any definition of the LIBOR Replacement Rate shall specify that in no event  shall such LIBOR Replacement Rate be less than zero for purposes of this Agreement) and  any such amendment shall become effective at 5:00 p.m. (Denver, Colorado time) on the  fifth  Business  Day  after  the  Administrative  Agent  shall  have  posted  such  proposed  amendment to all Lenders and the Company unless, prior to such time, Lenders comprising  the Required Lenders have delivered to the Administrative Agent written notice that such  Required Lenders do not accept such amendment.  For the avoidance of doubt, the parties  hereto  agree  that  unless  and  until  a  LIBOR  Replacement  Rate  is  determined  and  an  amendment  to  this  Agreement  is  entered  into  to  effect  the  provisions  of  this  Section  2.15(b), if the circumstances under clauses (i) and (ii) of this Section 2.15(b) exist, the  provisions of Section 2.15(a) shall apply.                                    75                





 






               (c)   Illegality.  If any Lender determines that any applicable law has made it        unlawful,  or  that  any  Governmental  Authority  has  asserted  that  it  is  unlawful,  for  any        Lender or its applicable lending office to make, maintain or fund Eurodollar Loans, or to        determine  or  charge  interest  rates  based  upon  the  Adjusted  LIBO  Rate,  or  any        Governmental Authority has imposed material restrictions on the authority of such Lender        to purchase or sell, or to take deposits of, dollars in the London interbank market, then, on        notice  thereof  by  such  Lender  to  Borrower  Representative  through  the  Administrative        Agent, any obligation of such Lender to make or continue Eurodollar Loans or to convert        Base Rate Loans to Eurodollar Loans shall be suspended until such Lender notifies the        Administrative Agent and Borrower Representative that the circumstances giving rise to        such determination no longer exist.  Upon receipt of such notice, Borrowers shall, upon        demand  from  such  Lender  (with  a  copy  to  the  Administrative  Agent),  prepay  or,  if        applicable, convert all Eurodollar Loans of such Lender to Base Rate Loans, either on the        last day of the Interest Period therefor, if such Lender may lawfully continue to maintain        such  Eurodollar  Loans  to  such  day,  or  immediately, if  such  Lender  may  not  lawfully        continue to maintain such Eurodollar Loans.  Upon any such prepayment or conversion,        Borrowers shall also pay accrued interest on the amount so prepaid or converted.         SECTION 2.16.  Increased Costs.  (a) If any Change in Law shall:                     (i)   impose, modify or deem applicable any reserve, special deposit or              similar requirement against assets of, deposits with or for the account of, or credit              extended  by,  any  Lender  (except  any  such  reserve  requirement  reflected  in  the              Adjusted LIBO Rate) or Issuing Bank;                     (ii)  subject the Administrative Agent, any Lender or the Issuing Bank to               any Taxes (other than (x) Excluded Taxes and (y) Indemnified Taxes and Other               Taxes  covered  by  Section  2.18)  imposed  as  a  result of  a  present  or  former              connection between such Administrative Agent, Lender or Issuing Bank and the              jurisdiction imposing such Tax on its Loans, Letters of Credit or Commitments, or              its deposits, reserves, other liabilities or capital attributable to such Loans, Letters              of Credit or Commitments; or                     (iii)  impose  on  any  Lender  or  Issuing  Bank  or  the  London interbank              market any other condition affecting this Agreement or Eurodollar Loans made by              such Lender or any Letter of Credit or participation therein;         and the result of any of the foregoing shall be to increase the cost to such Lender of making  or maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or  to increase the cost to such Lender or Issuing Bank of participating in, issuing or maintaining any  Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or  Issuing  Bank  hereunder  (whether  of  principal,  interest  or  otherwise  in  respect  of  any  such  Eurodollar Loan or Letter of Credit), then the Borrowers will pay to such Lender or Issuing Bank,  as the case may be, such additional amount or amounts as will compensate such Lender or Issuing  Bank, as the case may be, for such additional costs incurred or reduction suffered; provided that  the Borrowers shall not be treated less favorably with respect to such amounts than other similarly  situated borrowers of such Lender or Issuing Bank (it being understood that this provision shall                                         76    





 






   not be construed to obligate any Lender or Issuing Bank to make available any information that,  in its sole discretion, it deems confidential).               (b)   If any Lender or Issuing Bank determines that any Change in Law regarding        capital or liquidity requirements has or would have the effect of reducing the rate of return        on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing        Bank’s holding company, if any, as a consequence of this Agreement or the Loans made        by, or participations in Letters of Credit held by, such Lender, or Issuing Bank, to a level        below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding        company could have achieved but for such Change in Law (taking into consideration such        Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s        holding company with respect to capital adequacy), then from time to time the Borrowers        will pay to such Lender or Issuing Bank, as the case may be, such additional amount or        amounts  as  will  compensate  such  Lender  or  Issuing  Bank  or  such  Lender’s  or  Issuing        Bank’s holding company for any such reduction suffered; provided that the Borrowers shall        not be treated less favorably with respect to such amounts than other similarly situated        borrowers of such Lender or Issuing Bank (it being understood that this provision shall not        be construed to obligate any Lender or Issuing Bank to make available any information        that, in its sole discretion, it deems confidential).                (c)   A  certificate  of  a  Lender  or  Issuing  Bank  setting  forth  the  amount  or        amounts necessary to compensate such Lender or Issuing Bank or its holding company, as        the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to        the Borrower Representative and shall be conclusive absent manifest error.  The Borrowers        shall pay such Lender or Issuing Bank, as the case may be, the amount shown as due on        any such certificate within 10 Business Days after receipt thereof.               (d)   Failure  or  delay  on  the  part  of  any  Lender  or  Issuing  Bank  to  demand        compensation pursuant to this Section shall not constitute a waiver of such Lender’s or        Issuing Bank’s right to demand such compensation; provided that the Borrowers shall not        be  required  to  compensate  a  Lender  or  Issuing  Bank pursuant  to  this  Section  for  any        increased costs or reductions incurred more than 180 days prior to the date that such Lender        or Issuing Bank, as the case may be, notifies the Borrower Representative of the Change        in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing        Bank’s intention to claim compensation therefor; and provided, further, that if the Change        in Law giving rise to such increased costs or reductions is retroactive, then the 180-day        period referred to above shall be extended to include the period of retroactive effect thereof.         SECTION 2.17.  Break  Funding  Payments.   In  the  event  of  (i)  the  payment  of  any  principal of any Eurodollar Loan other than on the last day of an Interest Period applicable thereto  (including as a result of an Event of Default), (ii) the conversion of any Eurodollar Loan other than  on the last day of the Interest Period applicable thereto, (iii) the failure to borrow, convert, continue  or  prepay  any  Eurodollar  Loan  on  the  date  specified  in  any  notice  delivered  pursuant  hereto  (regardless  of  whether  such  notice  may  be  revoked  under  Section  2.09(d)  and  is  revoked  in  accordance therewith), or (iv) the assignment of any Eurodollar Loan other than on the last day of  the  Interest  Period  applicable  thereto  as  a  result of  a  request  by  the  Borrower  Representative  pursuant to Section 2.20, then, in any such event, the Borrowers shall compensate each Lender for                                         77    





 






   the loss, cost and expense attributable to such event (excluding loss of the Applicable Rate).  A  certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive  pursuant to this Section shall be delivered to the Borrower Representative and shall be conclusive  absent manifest error.  The Borrowers shall pay such Lender the amount shown as due on any such  certificate within 10 Business Days after receipt thereof.         SECTION 2.18.  Taxes.  (a) Defined Terms.  For purposes of this Section 2.18, the term  “Lender” includes any Issuing Bank and the term “applicable law” includes FATCA.               (b)   Payments Free of Taxes.  Any and all payments by or on account of any        obligation of the Borrowers under any Loan Document shall be made without deduction or        withholding for any Taxes, except as required by applicable law.  If any applicable law (as        determined in the good faith discretion of an applicable Withholding Agent) requires the        deduction or withholding of any Tax from any such payment by a Withholding Agent, then        the applicable Withholding Agent shall be entitled to make such deduction or withholding        and shall timely pay the full amount deducted or withheld to the relevant Governmental        Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then        the  sum  payable  by  the  Borrowers  shall  be  increased  as  necessary  so  that  after  such        deduction  or  withholding  has  been  made  (including  such  deductions  and  withholdings        applicable to additional sums payable under this Section 2.18) the applicable Recipient        receives an  amount equal to the sum it would have received had no such deduction or        withholding been made.               (c)   Payment of Other Taxes by the Borrowers.  the Borrowers shall timely pay        to the relevant Governmental Authority in accordance with applicable law, or at the option        of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.                (d)   Indemnification  by  the  Borrowers.   the  Borrowers  shall,  jointly  and        severally,  indemnify  each  Recipient,  within  10  days  after  demand  therefor,  for  the  full        amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or        attributable to amounts payable under this Section) payable or paid by such Recipient or        required to be withheld or deducted from a payment to such Recipient and any reasonable        expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes        were  correctly  or  legally  imposed  or  asserted  by  the  relevant  Governmental  Authority;        provided that, notwithstanding anything to the contrary herein, the Bermuda Borrowers        shall have no obligation to indemnify any Person with respect to Indemnified Taxes levied        in respect of payments made by the Company or obligations that do not constitute Bermuda        Obligations.  A certificate as to the amount of such payment or liability delivered to the        Borrower Representative by a Lender (with a copy to the Administrative Agent), or by the        Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent        manifest error.               (e)   Indemnification by the Lenders.  Each Lender shall severally indemnify the        Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes        attributable to such Lender (but only to the extent that the Borrowers have not already        indemnified the Administrative Agent for such Indemnified Taxes and without limiting the        obligation of the Borrowers to do so), (ii) any Taxes attributable to such Lender’s failure                                         78    





 






               to comply with the provisions of Section 9.04(d) relating to the recording of book entries  with respect sales of participating interests and (iii) any Excluded Taxes attributable to  such  Lender,  in  each  case,  that  are  payable  or  paid  by  the  Administrative  Agent  in  connection with any Loan Document, and any reasonable expenses arising therefrom or  with  respect  thereto,  whether  or  not  such  Taxes  were  correctly  or  legally  imposed  or  asserted by the relevant Governmental Authority.  A certificate as to the amount of such  payment  or  liability  delivered  to  any  Lender  by  the  Administrative  Agent  shall  be  conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent  to set off and apply any and all amounts at any time owing to such Lender under any Loan  Document or otherwise payable by the Administrative Agent to the Lender from any other  source against any amount due to the Administrative Agent under this paragraph (e).         (f)   Evidence of Payments.  As soon as practicable after any payment of Taxes  by the Borrowers to a Governmental Authority pursuant to this Section 2.18, the Borrowers  shall deliver to the Administrative Agent the original or a certified copy of a receipt issued  by such Governmental Authority evidencing such payment, if applicable, a copy of the  return reporting such payment or other evidence of such payment reasonably satisfactory  to the Administrative Agent.         (g)   Status of Lenders.  (i) Any Lender that is entitled to an exemption from or  reduction of withholding Tax with respect to payments made under any Loan Document  shall deliver to the Borrower Representative and the Administrative Agent, at the time or  times reasonably requested by the Borrower Representative or the Administrative Agent,  such  properly  completed  and  executed  documentation reasonably  requested  by  the  Borrower Representative or the Administrative Agent as will permit such payments to be  made without withholding or at a reduced rate of withholding.  In addition, any Lender, if  reasonably requested by the Borrower Representative or the Administrative Agent, shall  deliver such other documentation prescribed by applicable law or reasonably requested by  the  Borrower  Representative  or  the  Administrative  Agent  as  will  enable  the  Borrower  Representative or the Administrative Agent to determine whether or not such Lender is  subject to backup withholding or information reporting requirements.  Notwithstanding  anything to the contrary in the preceding two sentences, the completion, execution and  submission  of  such  documentation  (other  than  such  documentation  set  forth  in  Section 2.18(ii)(g)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s  reasonable judgment such completion, execution or submission would subject such Lender  to any material unreimbursed cost or expense or would materially prejudice the legal or  commercial position of such Lender.               (ii)  Without limiting the generality of the foregoing,                      (A)   any Lender that is a U.S. Person shall deliver to the Borrower              Representative  and  the  Administrative  Agent  on  or  prior  to  the  date  on              which such Lender becomes a Lender under this Agreement (and from time              to  time  thereafter  upon  the  reasonable  request  of  the  Borrower              Representative or the Administrative Agent), executed copies of IRS Form              W-9  certifying  that  such  Lender  is  exempt  from  U.S.  federal  backup              withholding tax;                                    79                





 






                     (B)   any Foreign Lender shall, to the extent it is legally entitled  to  do  so,  deliver  to  the  Borrower  Representative  and  the  Administrative  Agent (in such number of copies as shall be requested by the recipient) on  or prior to the date on which such Foreign Lender becomes a Lender under  this  Agreement  (and  from  time  to  time  thereafter  upon  the  reasonable  request  of  the  Borrower  Representative  or  the  Administrative  Agent),  whichever of the following is applicable:               (1)   in the case of a Foreign Lender claiming the benefits        of an income tax treaty to which the United States is a party (x) with        respect to payments of interest under any Loan Document, executed        copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing        an exemption from, or reduction of, U.S. federal withholding Tax        pursuant  to  the  “interest”  article  of  such  tax  treaty  and  (y)  with        respect to any other applicable payments under any Loan Document,        IRS  Form  W-8BEN  or  IRS  Form  W-8BEN-E  establishing  an        exemption  from,  or  reduction  of,  U.S.  federal  withholding  Tax        pursuant to the “business profits” or “other income” article of such        tax treaty;               (2)   executed copies of IRS Form W-8ECI;               (3)   in the case of a Foreign Lender claiming the benefits        of the exemption for portfolio interest under Section 881(c) of the        Code, (x) a certificate substantially in the form of Exhibit I-1 to the        effect that such Foreign Lender is not a “bank” within the meaning        of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of        any  Borrower  within  the  meaning  of  Section  881(c)(3)(B)  of  the        Code,  or  a  “controlled  foreign  corporation”  described  in  Section        881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and        (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-       E; or               (4)   to the extent a Foreign Lender is not the beneficial        owner, executed copies of IRS Form W-8IMY, accompanied by IRS        Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S.        Tax Compliance Certificate substantially in the form of Exhibit I-2        or Exhibit I-3, IRS Form W-9, and/or other certification documents        from  each  beneficial  owner,  as  applicable;  provided  that  if  the        Foreign Lender is a partnership and one or more direct or indirect        partners of such Foreign Lender are claiming the portfolio interest        exemption,  such  Foreign  Lender  may  provide  a  U.S.  Tax        Compliance Certificate substantially in the form of Exhibit I-4 on        behalf of each such direct and indirect partner;         (C)   any Foreign Lender shall, to the extent it is legally entitled  to  do  so,  deliver  to  the  Borrower  Representative  and  the  Administrative                       80                





 






                     Agent (in such number of copies as shall be requested by the recipient) on                    or prior to the date on which such Foreign Lender becomes a Lender under                    this  Agreement  (and  from  time  to  time  thereafter  upon  the  reasonable                    request  of  the  Borrower  Representative  or  the  Administrative  Agent),                    executed copies of any other form prescribed by applicable law as a basis                    for claiming exemption from or a reduction in U.S. federal withholding Tax,                    duly completed, together with such supplementary documentation as may                    be prescribed by applicable law to permit the Borrower Representative or                    the  Administrative  Agent  to  determine  the  withholding  or  deduction                    required to be made; and                           (D)   if a payment made to a Lender under any Loan Document                    would be subject to U.S. federal withholding Tax imposed by FATCA if                    such  Lender  were  to  fail  to  comply  with  the  applicable  reporting                    requirements of FATCA (including those contained in Section 1471(b) or                    1472(b)  of  the  Code,  as  applicable),  such  Lender  shall  deliver  to  the                    Borrower Representative and the Administrative Agent at the time or times                    prescribed by law and at such time or times reasonably requested by the                    Borrower Representative or the Administrative Agent such documentation                    prescribed  by  applicable  law  (including  as  prescribed  by  Section                    1471(b)(3)(C)(i)  of  the  Code)  and  such  additional  documentation                    reasonably requested by the Borrower Representative or the Administrative                    Agent as may be necessary for the Borrowers and the Administrative Agent                    to comply with their obligations under FATCA and to determine that such                    Lender has complied with such Lender’s obligations under FATCA or to                    determine the amount to deduct and withhold from such payment.  Solely                    for purposes of this clause (D), “FATCA” shall include any amendments                    made to FATCA after the date of this Agreement.         Each  Lender  agrees  that  if  any  form  or  certification  it  previously  delivered  expires  or  becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly  notify the Borrower Representative and the Administrative Agent in writing of its legal inability  to do so.               (h)   Treatment of Certain Refunds.  If any party determines, in its sole discretion        exercised in good faith, that it has received a refund of any Taxes as to which it has been        indemnified pursuant to this Section 2.18 (including by the payment of additional amounts        pursuant to this Section 2.18), it shall pay to the indemnifying party an amount equal to        such refund (but only to the extent of indemnity payments made under this Section with        respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including        Taxes) of such indemnified party and without interest (other than any interest paid by the        relevant Governmental Authority with respect to such refund).  Such indemnifying party,        upon  the  request  of  such  indemnified  party,  shall  repay  to  such  indemnified  party  the        amount  paid  over  pursuant  to  this  paragraph  (h)  (plus   any  penalties,  interest  or  other        charges  imposed  by  the  relevant  Governmental  Authority)  in  the  event  that  such        indemnified  party  is  required  to  repay  such  refund to  such  Governmental  Authority.         Notwithstanding  anything  to  the  contrary  in  this  paragraph  (h),  in  no  event  will  the                                         81    





 






         indemnified party be required to pay any amount to an indemnifying party pursuant to this        paragraph (h) the payment of which would place the indemnified party in a less favorable        net after-Tax position than the indemnified party would have been in if the Tax subject to        indemnification  and  giving  rise  to  such  refund  had not  been  deducted,  withheld  or        otherwise imposed and the indemnification payments or additional amounts with respect        to such Tax had never been paid.  This paragraph shall not be construed to require any        indemnified party to make available its Tax returns (or any other information relating to its        Taxes that it deems confidential) to the indemnifying party or any other Person.                (i)   Survival.  Each party’s obligations under this Section 2.18 shall survive the        resignation or replacement of the Administrative Agent or any assignment of rights by, or        the  replacement  of,  a  Lender,  the  termination  of  the  Commitments  and  the  repayment,        satisfaction or discharge of all obligations under any Loan Document.         SECTION 2.19.  Payments Generally; Allocation of Proceeds; Sharing of Set-offs.  (a)  The  Borrowers  shall  make  each  payment  required  to  be  made  by  them  hereunder  (whether  of  principal,  interest,  fees  or  reimbursement  of  LC  Disbursements,  or  of  amounts  payable  under  Section 2.16, 2.17 or 2.18) prior to 11:00 a.m. Denver, Colorado time, on the date when due, in  immediately available funds, without set off or counterclaim.  Any amounts received after such  time on any date may, in the discretion of the Administrative Agent, be deemed to have been  received on the next succeeding Business Day for purposes of calculating interest thereon.  All  such payments shall be made to the Administrative Agent for the account of the respective Lenders  to which such payment is owed, at such account as the Administrative Agent may designate to  Borrower Representative in writing from time to time, except payments to be made directly to an  Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant  to Sections 2.16, 2.17, 2.18 and 9.03 shall be made directly to the Persons entitled thereto.  The  Administrative Agent shall distribute any such payments received by it for the account of any other  Person to the appropriate recipient promptly following receipt thereof in like funds as received by  wire transfer to such Lender’s lending office as specified in its Administrative Questionnaire or  such other office as notified in writing by such Lender to the Administrative Agent.  If any payment  hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended  to the next succeeding Business Day, and, in the case of any payment accruing interest, interest  thereon shall be payable for the period of such extension.  All payments hereunder shall be made  in dollars.               (b)   Any proceeds of Collateral received by the Administrative Agent after an        Event of Default has occurred and is continuing and the Administrative Agent so elects or        the Required Lenders so direct shall be applied ratably first, to pay any fees, indemnities,        or expense reimbursements including amounts then due to the Administrative Agent, the        Collateral Agent and each Issuing Bank from the Borrowers (other than in connection with        Bank Product Obligations); second, to pay any fees or expense reimbursements then due        to the  Lender Parties from the Borrowers (other  than in connection with Bank Product        Obligations); third, to pay interest due in respect of Protective Advances; fourth, to pay the        principal of Protective Advances; fifth, on a pro rata basis, to pay interest then due and        payable on the Loans (other than Protective Advances); sixth, on a pro rata basis, to prepay        principal on the Loans (other than Protective Advances) and LC Disbursements and any        amounts  owing  with  respect  to  Bank  Product  Obligations  that  are  Swap  Obligations;                                         82    





 






               seventh, to pay an amount to the Administrative Agent equal to one hundred five percent  (105%) of the aggregate undrawn face amount of all outstanding Letters of Credit and the  aggregate amount of any unpaid LC Disbursements ratably in accordance with the then  outstanding amounts thereof, to be held as cash collateral for such Obligations; eighth, to  pay  any  amounts  owing  with  respect  to  Bank  Product Obligations  that  are  Banking  Services; and ninth, to pay any other Secured Obligation due to the Administrative Agent  or any other Lender Party by the Borrowers.  Notwithstanding anything to the contrary  contained in this Agreement, unless so directed by the Borrower Representative, or unless  an Event of Default is in existence, neither the Administrative Agent nor any other Lender  Party shall apply any payment which it receives to any Eurodollar Loan of a Class, except  (i) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or  (ii) in the event, and only to the extent, that there are no outstanding Base Rate Loans of  the same Class and, in any such event, the Borrowers shall pay the break funding payment  required in accordance with Section 2.17.  The Administrative Agent and the other Lender  Parties shall have the continuing and exclusive right to apply and reverse and reapply any  and  all  such  proceeds  and  payments  to  any  portion  of  the  Secured  Obligations.   Notwithstanding  the  foregoing,  (A)  any  such  application  of  proceeds  from  Collateral  securing solely the Bermuda Secured Obligations shall be made solely in respect of the  Bermuda  Secured  Obligations  and  (B)  Excluded  Swap  Obligations  with  respect  to  any  Loan Guarantor shall not be paid with amounts received from such Loan Guarantor or such  Loan  Guarantor’s  assets,  but  appropriate  adjustments  shall  be  made  with  respect  to  payments  from  other  Loan  Parties  to  preserve  the  allocation  to  Secured  Obligations  otherwise set forth above in this Section.         (c)   If any Lender shall, by exercising any right of set off or counterclaim or  otherwise, obtain payment in respect of any principal of or interest on any of its Loans or  participations in LC Disbursements resulting in such Lender receiving payment of a greater  proportion of the aggregate amount of its Loans and participations in LC Disbursements  and accrued interest thereon than the proportion received by any other Lender, then the  Lender  receiving  such  greater  proportion  shall  purchase  (for  cash  at  face  value)  participations in the Loans and participations in LC Disbursements of other Lenders to the  extent necessary so that the benefit of all such payments shall be shared by the Lenders  ratably in accordance with the aggregate amount of principal of and accrued interest on  their respective Loans and participations in LC Disbursements; provided that (i) if any such  participations are purchased and all or any portion of the payment giving rise thereto is  recovered, such participations shall be rescinded and the purchase price restored to the  extent of such recovery, without interest; and (ii) the provisions of this paragraph shall not  be construed to apply to any payment made by the Borrowers pursuant to and in accordance  with  the  express  terms  of  this  Agreement  or  any  payment  obtained  by  a  Lender  as  consideration  for  the  assignment  of  or  sale  of  a  participation  in  any  of  its  Loans  or  participations in LC Disbursements to any assignee or participant.  Each Borrower consents  to the foregoing and agrees, to the extent it may effectively do so under Requirements of  Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may  exercise  against  such  Borrower  rights  of  set-off  and  counterclaim  with  respect  to  such  participation  as  fully  as  if  such  Lender  were  a  direct  creditor  of  such  Borrower  in  the  amount of such participation.                                    83                





 






               (d)   Unless  the  Administrative  Agent  shall  have  received  notice  from  the        Borrower  Representative  prior  to  the  date  on  which any  payment  is  due  to  the        Administrative Agent for the account of the Lenders or an Issuing Bank hereunder that the        Borrowers will not make such payment, the Administrative Agent may assume that the        Borrowers  have  made  such  payment  on  such  date  in  accordance  herewith  and  may,  in        reliance upon such assumption, distribute to the Lenders or the Issuing Banks, as the case        may  be,  the  amount  due.   In  such  event,  if  the  Borrowers  have  not  in  fact  made  such        payment, then each of the  Lenders or the  Issuing Banks, as the case may  be, severally        agrees to repay to the Administrative Agent forthwith on demand the amount so distributed        to such Lender or such Issuing Bank with interest thereon, for each day from and including        the  date  such  amount  is  demanded  to  but  excluding  the  date  of  payment  to  the        Administrative  Agent,  at  the  greater  of  the  Federal  Funds  Effective  Rate  and  a  rate        reasonably determined by the Administrative Agent in accordance with banking industry        rules on interbank compensation.               (e)   If any  Lender shall fail  to make  any payment required to be made by it        pursuant to Section 2.05, 2.06(d) or (e), 2.07(b), 2.19(d) or 9.03(c), then the Administrative        Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any        amounts thereafter received by the Administrative Agent for the account of such Lender to        satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations        are fully paid.         SECTION 2.20.  Mitigation  Obligations;  Replacement  of  Lenders.   (a)  If  any  Lender  requests compensation under Section 2.16, or if the Borrowers are required to pay any additional  amount to any Lender or any Governmental Authority for the account of any Lender pursuant to  Section 2.18, then such Lender shall use reasonable efforts to designate a different lending office  for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to  another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation  or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.16 or 2.18, as  the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or  expense and would not otherwise be disadvantageous to such Lender.  The Borrowers hereby agree  to pay  all reasonable costs and expenses incurred by any  Lender in connection with  any such  designation or assignment;               (b)   If any Lender requests compensation under Section 2.16, or if the Borrowers        are required to pay any additional amount to any Lender or any Governmental Authority        for  the  account  of  any  Lender  pursuant  to  Section  2.18,  or  if  any  Lender  becomes  a        Defaulting Lender, then the Borrowers may (i) at their sole expense and effort, upon notice        to such Lender and the Administrative Agent, require such Lender to assign and delegate,        without recourse (in accordance with and subject to the restrictions contained in Section        9.04), all its interests, rights and obligations under this Agreement to an assignee that shall        assume such obligations (which assignee may be another Lender, if a Lender accepts such        assignment); provided that (A) the Borrowers shall have received the prior written consent        of the Administrative Agent (and if a Revolving Commitment is being assigned, the Issuing        Banks),  which consent shall not unreasonably be withheld, (B) such  Lender shall have        received payment of an amount equal to the outstanding principal of its Loans and funded        participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued                                         84    





 






               fees and all other amounts payable to it hereunder, from the assignee (to the extent of such  outstanding principal and accrued interest and fees) or the Borrowers (in the case of all  other  amounts),  and  the  assignee  shall  have  assumed  all  unfunded  obligations  of  such  Lender in respect of such Lender’s Revolving Commitment, and (C) in the case of any such  assignment  resulting  from  a  claim  for  compensation under  Section  2.16  or  payments  required to be made pursuant to Section 2.18, such assignment will result in a reduction in  such compensation or payments; or (ii) if approved by the Required Lenders, terminate the  Commitments of such Lender and repay all non-contingent obligations of the Borrowers  owing to such Lender relating to the Loans and participations held by such Lender as of  such termination date.  A Lender shall not be required to make any such assignment and  delegation  if,  prior  thereto,  as  a  result  of  a  waiver  by  such  Lender  or  otherwise,  the  circumstances entitling the Borrowers to require such assignment and delegation cease to  apply.  This Section 2.20 shall not be the exclusive remedy of the Borrowers with respect  to any Lender Party that is a Defaulting Lender.   SECTION 2.21.  Defaulting Lenders.          (a)   Defaulting Lender Cash Collateral.               (i)   At any time that there shall exist a Defaulting Lender, within one         Business  Day  following  the  written  request  of  the  Administrative  Agent  or  any         Issuing Bank (with a copy to the Administrative Agent) the Borrowers shall Cash         Collateralize the Issuing Banks’ Fronting Exposure with respect to such Defaulting         Lender  (determined  after  giving  effect  to  Section  2.21(b)(iv)  and  any  Cash        Collateral  provided  by  such  Defaulting  Lender)  in  an  amount  not  less  than  the        Minimum Collateral Amount.               (ii)  The  Borrowers,  and  to  the  extent  provided  by  any  Defaulting        Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the        benefit of the Issuing Banks, and agrees to maintain, a first priority security interest        in all such Cash Collateral as security for the Defaulting Lenders’ obligation to fund        participations in respect of Letters of Credit, to be applied pursuant to clause (iii)        below.  If at any time the Administrative Agent determines that Cash Collateral is        subject to any right or claim of any Person other than the Administrative Agent and        the  Issuing  Banks  as  herein  provided,  or  that  the  total  amount  of  such  Cash        Collateral  is  less  than  the  Minimum  Collateral  Amount,  the  Borrowers  will,        promptly  upon  demand  by  the  Administrative  Agent,  pay  or  provide  to  the        Administrative  Agent  additional  Cash  Collateral  in an  amount  sufficient  to        eliminate such deficiency (after giving effect to any Cash Collateral provided by        the Defaulting Lender).               (iii)  Notwithstanding  anything  to  the  contrary  contained in  this        Agreement, Cash Collateral provided under this Section 2.21(a) or Section 2.21(b)        in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting        Lender’s obligation to fund participations in respect of Letters of Credit (including,        as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such                                    85                





 






                     obligation)  for  which  the  Cash  Collateral  was  so  provided,  prior  to  any  other        application of such property as may otherwise be provided for herein.                (iv)  Cash  Collateral  (or  the  appropriate  portion  thereof)  provided  to        reduce any Issuing Bank’s Fronting Exposure shall no longer be required to be held        as Cash Collateral pursuant to this Section 2.21(a) following (i) the elimination of        the  applicable  Fronting  Exposure  (including  by  the termination  of  Defaulting        Lender  status  of  the  applicable  Lender),  or  (ii)  the  determination  by  the        Administrative  Agent  and  each  Issuing  Bank  that  there  exists  excess  Cash        Collateral;  provided  that,  subject  to  Section  2.21(b)  the  Person  providing  Cash        Collateral and each Issuing Bank may agree that Cash Collateral shall be held to        support  future  anticipated  Fronting  Exposure  or  other  obligations,  and  provided        further that to the extent that such Cash Collateral was provided by any Borrower,        such Cash Collateral shall remain subject to the security interest granted pursuant        to the Loan Documents.         (b)   Defaulting Lender Adjustments.  Notwithstanding anything to the contrary  contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such  time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable  law:               (i)   Waivers  and  Amendments.   Such  Defaulting  Lender’s  right  to        approve  or  disapprove  any  amendment,  waiver  or  consent  with  respect  to  this        Agreement  shall  be  restricted  as  set  forth  in  the definition  of  Required  Lenders        and/or Required Revolving Lenders, as applicable.               (ii)  Defaulting  Lender  Waterfall.  Any  payment  of  principal,  interest,        fees or other amounts received by the Administrative Agent for the account of such        Defaulting  Lender  (whether  voluntary  or  mandatory, at  maturity,  pursuant  to        Article  VII  or  otherwise)  or  received  by  the  Administrative  Agent  from  a        Defaulting Lender pursuant to Section 2.19(c) shall be applied at such time or times        as may be determined by the Administrative Agent as follows: first , to the payment        of  any  amounts  owing  by  such  Defaulting  Lender  to  the  Administrative  Agent        hereunder; second , to the payment on a pro rata basis of any amounts owing by        such Defaulting Lender to any Issuing Bank or Swingline Lender hereunder; third ,        to Cash Collateralize each Issuing Banks’ Fronting Exposure with respect to such        Defaulting  Lender  in  accordance  with  Section  2.21(a); fourth ,  as  the  Borrower        Representative may request (so long as no Default or Event of Default exists), to        the funding of any Loan in respect of which such Defaulting Lender has failed to        fund  its  portion  thereof  as  required  by  this  Agreement,  as  determined  by  the        Administrative Agent; fifth , if so determined by the Administrative Agent and the        Borrower Representative, to be held in a deposit account and released pro rata in        order to (x) satisfy such Defaulting Lender’s potential future Fronting Exposure        with respect to Loans under this Agreement and (y) Cash Collateralize any Issuing        Banks’  future  Fronting  Exposure  with  respect  to  such  Defaulting  Lender  with        respect to future Letters of Credit issued under this Agreement, in accordance with        Section 2.21(a); sixth , to the payment of any amounts owing to the Lenders, the                                   86                





 






               Issuing  Banks  or  Swingline  Lenders  as  a  result  of  any  judgment  of  a  court  of  competent  jurisdiction  obtained  by  any  Lender,  the Issuing  Banks  or  Swingline  Lenders against such Defaulting Lender as a result of such Defaulting Lender’s  breach of its obligations under this Agreement; seventh , so long as no Default or  Event of Default exists, to the payment of any amounts owing to the Borrowers as  a  result  of  any  judgment  of  a  court  of  competent  jurisdiction  obtained  by  any  Borrower against such Defaulting Lender as a result of such Defaulting Lender's  breach  of  its  obligations  under  this  Agreement;  and eighth ,  to  such  Defaulting  Lender or as otherwise directed by a court of competent jurisdiction; provided that  if  (x)  such  payment  is  a  payment  of  the  principal  amount  of  any  Loans  or  LC  Disbursements in respect of which such Defaulting Lender has not fully funded its  appropriate share, and (y) such Loans were made or the related Letters of Credit  were issued at a time when the conditions set forth in Section 4.02 were satisfied  or  waived,  such  payment  shall  be  applied  solely  to pay  the  Loans  of,  and  LC  Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior to  being applied to the payment of any Loans of, or LC Disbursements owed to, such  Defaulting  Lender  until  such  time  as  all  Loans  and funded  and  unfunded  participations in Letters of Credit and Swingline Loans are held by the Lenders pro  rata  in  accordance  with  the  Commitments  without  giving  effect  to  Section  2.21(b)(iv).  Any payments, prepayments or other amounts paid or payable to a  Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting  Lender  or  to  post  Cash  Collateral  pursuant  to  this Section  2.21(b)(ii)  shall  be  deemed  paid  to  and  redirected  by  such  Defaulting  Lender,  and  each  Lender  irrevocably consents hereto.          (iii)  Certain Fees. (A) No Defaulting Lender shall be entitled to receive  any commitment fees payable under Section 2.13(a) for any period during which  that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay  any such fee that otherwise would have been required to have been paid to that  Defaulting Lender).                 (B)   Each  Defaulting  Lender  shall  be  entitled  to  receive        participation  fees  payable  under  Section  2.13(b)  for  any  period  during        which that Lender is a Defaulting Lender only to the extent allocable to its        Applicable Percentage of the stated amount of Letters of Credit for which it        has provided Cash Collateral pursuant to Section 2.21(a).                 (C)   With respect to any commitment fee or participation fee not        required to be paid to any Defaulting Lender pursuant to clause (A) or (B)        above,  the  Borrowers  shall  (x)  pay  to  each  Non-Defaulting  Lender  that        portion of any such fee otherwise payable to such Defaulting Lender with        respect  to  such  Defaulting  Lender’s  participation  in  Letters  of  Credit  or        Swingline Loans that has been reallocated to such Non-Defaulting Lender        pursuant to clause (iv) below, (y) pay to each Issuing Bank and Swingline        Lender, as applicable, the amount of any such fee otherwise payable to such        Defaulting  Lender  to  the  extent  allocable  to  such  Issuing  Bank’s  or                              87                





 






                           Swingline  Lender’s  Fronting  Exposure  to  such  Defaulting  Lender,  and              (z) not be required to pay the remaining amount of any such fee.               (iv)  Reallocation of Participations to Reduce Fronting Exposure.  All or        any part of such Defaulting Lender’s LC Exposure and Swingline Exposure shall        be  reallocated  among  the  Non-Defaulting  Lenders  in accordance  with  their        respective Applicable Percentages (calculated without regard to such Defaulting        Lender’s Commitment) but only to the extent that such reallocation does not cause        the aggregate Revolving Exposures of any Non-Defaulting Lender to exceed such        Non-Defaulting Lender’s Revolving Commitments.  Subject to Section 11.09, no        reallocation hereunder shall constitute a waiver or release of any claim of any party        hereunder against a Defaulting Lender arising from that Lender having become a        Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of        such Non-Defaulting Lender’s increased exposure following such reallocation.                (v)   Cash Collateral, Repayment of Swingline Loans.  If the reallocation        described  in  clause  (iv)  above  cannot,  or  can  only partially,  be  effected,  the        Borrowers shall, without prejudice to any right or remedy available to it hereunder        or under law, (x) first, prepay Swingline Loans in an amount equal to the Swingline        Lenders’ Fronting Exposure and (y) second, Cash Collateralize the Issuing Banks’        Fronting Exposure in accordance with the procedures set forth in Section 2.21(a).         (c)   Defaulting  Lender  Cure.   If  the  Borrower  Representative,  the  Administrative Agent and each Swingline Lender and Issuing Bank agree in writing that a  Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties  hereto,  whereupon  as  of  the  effective  date  specified  in  such  notice  and  subject  to  any  conditions set forth therein (which may include arrangements with respect to any Cash  Collateral),  that  Lender  will,  to  the  extent  applicable,  purchase  at  par  that  portion  of  outstanding Loans of the other Lenders or take such other actions as the Administrative  Agent  may  determine  to  be  necessary  to  cause  the  Loans  and  funded  and  unfunded  participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders  in  accordance  with  the  applicable  Commitments  (without  giving  effect  to  Section 2.21(b)(iv), whereupon such Lender will cease to be a Defaulting Lender; provided  that no adjustments will be made retroactively with respect to fees accrued or payments  made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and  provided,  further,  that  except  to  the  extent  otherwise  expressly  agreed  by  the  affected  parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or  release  of  any  claim  of  any  party  hereunder  arising  from  that  Lender’s  having  been  a  Defaulting Lender.         (d)   New  Swingline  Loans/Letters  of  Credit.   So  long  as any  Lender  is  a  Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline  Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such  Swingline  Loan  and  (ii)  no  Issuing  Bank  shall  be  required  to  issue,  extend,  renew  or  increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure  after giving effect thereto.                                    88                





 






         SECTION 2.22.  Returned Payments.  If after receipt of any payment which is applied to  the payment of all or any part of the Obligations, the Administrative Agent or any Lender is for  any reason compelled to surrender such payment or proceeds to any Person because such payment  or application of proceeds is invalidated, declared fraudulent, set aside, determined to be void or  voidable as a preference, impermissible setoff, or a diversion of trust funds, or for any other reason,  then the Obligations or part thereof intended to be satisfied shall be revived and continued and this  Agreement shall continue in full force as if such payment or proceeds had not been received by  the Administrative Agent or such Lender.  The provisions of this Section 2.22 shall be and remain  effective notwithstanding any contrary action which may have been taken by the Administrative  Agent or any Lender in reliance upon such payment or application of proceeds.  The provisions of  this Section 2.22 shall survive the termination of this Agreement.         SECTION 2.23.  Bermuda Obligations.  Notwithstanding anything to the contrary in this  Agreement or the other Loan Documents, the term “Borrower” shall include To- Ricos and To- Ricos Distribution only to the extent of the Bermuda Obligations.  The Bermuda Borrowers shall  have no obligation to pay or reimburse any cost or expense or indemnify or hold harmless any  Person with respect to any Loss that is not a direct and proximate result of the Bermuda Borrowers’  action (or failure to act).  In addition, nothing in this Agreement shall be interpreted or construed  as an agreement by the Bermuda Borrowers to pay or reimburse, or a direct or indirect Guarantee  by  the  Bermuda  Borrowers  of,  or  direct  or  indirect pledge  of  their  assets  to  secure,  the  U.S.  Obligations. For the avoidance of doubt, the Company shall be jointly and severally liable for the  Bermuda Obligations.                                     ARTICLE III                                                                REPRESENTATIONS AND WARRANTIES         Each Loan Party represents and warrants to the Lender Parties that:         SECTION 3.01.  Organization; Powers.  Each of the Loan Parties and each of the Material  Subsidiaries is duly organized or formed and validly existing under the laws of the jurisdiction of  its organization, has all requisite power and authority to carry on its business as now conducted  and, except where the failure to do so, individually or in the aggregate, could not reasonably be  expected  to  result  in  a  Material  Adverse  Effect,  is  qualified  to  do  business  in,  and  is  in  good  standing  in,  its  jurisdiction  of  organization  or  formation  and  every  jurisdiction  where  such  qualification is required.         SECTION 3.02.  Authorization; Enforceability.  The Transactions are within each Loan  Party’s  organizational  powers  and  have  been  duly  authorized  by  all  necessary  organizational  actions and, if required, actions by equity holders.  The Loan Documents to which each Loan Party  is a party have been duly executed and delivered by such Loan Party and constitute a legal, valid  and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to  applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’  rights generally and subject to general principles of equity, regardless of whether considered in a  proceeding in equity or at law.                                           89    





 






         SECTION 3.03.  Governmental Approvals; No Conflicts.  As of the Effective Date, the  Transactions (a) do not require any consent or approval of, registration or filing with, or any other  action by, any Governmental Authority, except such as have been obtained or made and are in full  force and effect and except for filings necessary to perfect Liens created pursuant to the Loan  Documents; (b) will not violate any Requirement of Law applicable to any Loan Party or any of  the Subsidiaries; (c) will not violate or result in a default under any indenture or other agreement  or instrument binding upon any Loan Party or any of the Subsidiaries or its assets, or give rise to  a right under any such indenture, agreement or instrument (other than a Loan Document) to require  any payment to be made by any Loan Party or any of the Subsidiaries; and (d) will not result in  the creation or imposition of any Lien on any asset of any Loan Party or any of the Subsidiaries,  except Liens created or permitted pursuant to the Loan Documents, except to the extent that any  such failure to make or obtain, or any such violation, default or payment, in each case referred to  in clauses (a) through (d), individually or in the aggregate, could not reasonably be expected to  result in a Material Adverse Effect.         SECTION 3.04.  Financial Condition; No Material Adverse Effect.  (a) The Company has  heretofore  furnished  to  the  Lenders  its  consolidated  balance  sheet  and  statements  of  income,  stockholders  equity  and  cash  flows  as  of  and  for  the  Fiscal  Year  ended  December  31,  2017,  reported on by KPMG LLP, independent public accountants.  Such financial statements present  fairly, in all material respects, the financial position and results of operations and cash flows of the  Company on a consolidated basis as of such dates and for such periods in accordance with GAAP.               (b)   No  event,  change  or  condition  has  occurred  that  has  had,  or  could        reasonably be expected to have, a Material Adverse Effect, since December 31, 2017 (after        giving effect to the Transactions).         SECTION 3.05.  Properties.  (a) As of the Effective Date, Schedule 3.05(a) sets forth the  address of each parcel of real property that is owned, leased or subleased by each Loan Party (it  being understood that the failure to list on such Schedule real property having an insignificant  value shall not result in a breach of this Section; provided that each Loan Party hereby represents  and warrants that it reasonably believes that such Schedule sets forth the address of each parcel of  real property that is owned, leased or subleased by each Loan Party as of the Effective Date).  Each  of such leases and subleases is valid and enforceable in accordance with its terms and is in full  force and effect, and (i) no default by any Loan Party, or (ii) to the knowledge of any Loan Party  after due inquiry, no default by any other party to any such lease or sublease exists, except where  the foregoing, individually or in the aggregate, could not reasonably be expected to result in a  Material Adverse Effect.  Each of the Loan Parties and the Subsidiaries has good and indefeasible  title  to,  or  valid  leasehold  interests  in,  all  its real  and  personal  property  that  is  material  to  its  business, free of (i) all Liens (other than Permitted Liens) and (ii) other defects in title that (A)  materially interfere with its ability to conduct its business or to utilize such property, or materially  affect the value of such property, in each case in a manner consistent with the intended purpose of  such assets or property, or (B) could reasonably be expected to have a Material Adverse Effect.               (b)   As of the Effective Date, Schedule 3.05(b) sets forth a correct and complete        list of (i) all registered trademarks, trade names, copyrights and patents and (ii) material        unregistered trademarks and copyrights, in each case necessary to the business of the Loan        Parties as currently conducted.  Except as could not reasonably be expected to result in a                                         90    





 






         Material Adverse Effect, each of the Loan Parties and the Subsidiaries owns, or is licensed        to  use,  all  trademarks,  trade  names,  copyrights,  patents  and  other  intellectual  property        necessary to its business as currently conducted, and the use of such intellectual property        by the Loan Parties and the Subsidiaries does not infringe, individually or in the aggregate,        in any material respect upon the rights of any other Person, and the Loan Parties’ rights        thereto  are  not  subject  to  any  licensing  agreement or  similar  arrangement,  other  than        immaterial license agreements granted in the ordinary course of business.         SECTION 3.06.  Flood Zones.  Except as set forth on Schedule 3.06 with respect to any  Mortgaged  Property  on  the  Effective  Date,  no  portion  of  any  Mortgaged  Property  has  Improvements located in an  area identified by  FEMA as  an  area having special  flood hazards  pursuant  to  the  Flood  Insurance  Acts.   With  respect  to  any  Mortgaged  Property  that  has  Improvements located in an  area identified by  FEMA as  an  area having special  flood hazards  pursuant  to  the  Flood  Insurance  Acts,  the  applicable  Loan  Party  has  obtained  the  insurance  required pursuant to Section 5.09(b).         SECTION 3.07.  Litigation.  (a) Except for the Disclosed Matters, there are no actions,  suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to  the knowledge of any Loan Party, threatened in writing (i) against the Loan Parties, any of the  Subsidiaries or any of their property or assets that could reasonably be expected, individually or  in the aggregate, to result in a Material Adverse Effect, (ii) that involve this Agreement (other than  actions,  suits  or  proceedings  brought  by  any  Lender  Party,  any  Participant  or  any  of  their  Affiliates), which if adversely determined would have a material impact on the rights of the Lender  Parties hereunder, or (iii) that, as of the Effective Date, involve the Transactions.               (b)   Except  for  the  Disclosed  Matters,  (i)  no  Loan  Party  nor  any  of  the        Subsidiaries (A) has received written notice of any claim with respect to any Environmental        Liability or (B) knows of any environmental condition existing at any property owned,        leased or subleased by the Loan Parties or the Subsidiaries, or arising out of the operation        of their businesses, that provides a basis for any Environmental Liability, in the case of        each of clauses (A) and (B) above, that could reasonably be expected to have a Material        Adverse Effect, except to the extent that it has provided a reasonably detailed notice thereof        to  the  Administrative  Agent,  and  (ii)  except  with  respect  to  any  other  matters  that,        individually or in the aggregate, could not reasonably be expected to result in a Material        Adverse Effect, no Loan Party nor any of the Subsidiaries (A) has failed to comply with        any Environmental Law or to obtain, maintain or comply with any permit, license or other        approval required under any Environmental Law or (B) has become subject to any known        Environmental Liability.               (c)   Since the Effective Date, the Loan Parties reasonably believe that there has        been no change in the status of the Disclosed Matters, which has not been disclosed in        reasonable detail to the Administrative Agent, that, individually or in the aggregate, has        resulted in, or could reasonably be expected to result in, a Material Adverse Effect.         SECTION 3.08.  Compliance  with  Laws  and  Agreements.   Each  Loan  Party  and  the  Subsidiaries is in compliance with all Requirements of Law applicable to it or its property and all  indentures, agreements and other instruments (including Material Agreements) binding upon it or                                         91    





 






   its  property,  except  where  the  failure  to  do  so,  individually  or  in  the  aggregate,  could  not  reasonably be expected to result in a Material Adverse Effect.         SECTION 3.09.  Investment Company Status.  No Loan Party nor any of the Subsidiaries  is an “investment company” as defined in, or subject to regulation under, the Investment Company  Act of 1940.         SECTION 3.10.  Taxes.  Each of the Loan Parties and the Subsidiaries has timely filed or  caused to be filed all Tax returns and reports required to have been filed and has paid or caused to  be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested or are  unpaid in compliance with Section 5.04 or (b) to the extent that the failure to do so could not  reasonably be expected to result in a Material Adverse Effect.         SECTION 3.11.  ERISA, Etc.  No ERISA Event has occurred or is reasonably expected  to  occur  that,  when  taken  together  with  all  other  such  ERISA  Events  for  which  liability  is  reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect.   The minimum funding standards of ERISA and the Code with respect to each Plan have been  satisfied, except where the failure to do so, individually or in the aggregate, could not reasonably  be expected to result in a Material Adverse Effect.  The Bermuda Borrowers and their subsidiaries  organized under the laws of Bermuda are in compliance with the requirements of all applicable  Bermuda laws relating to pension plans, except where the failure to comply, individually or in the  aggregate, could not reasonably be expected to result in a Material Adverse Effect.         SECTION 3.12.  Disclosure.   As  of  the  Effective  Date  and  after  giving  effect  to  the  Transactions,  each  Borrower  has  disclosed  to  the  Lenders  all  agreements,  instruments  and  corporate or other contractual restrictions to which it or any Subsidiary is subject, and all other  matters reasonably known to it, that, individually or in the aggregate, could reasonably be expected  to result in a Material Adverse Effect.  As of the date any such information was provided, none of  the reports, financial statements, certificates or other written information furnished by or on behalf  of any Loan Party to the Administrative Agent or any other Lender Party (other than projected  financial  information  and  other  forward  looking  information  and  information  of  a  general  economic or industry specific nature) in connection with the negotiation of this Agreement or any  other Loan Document (as modified or supplemented by other information so furnished), when  taken as a whole, contains any material misstatement of fact or omits to state any material fact  necessary to make the statements therein, in the light of the circumstances under which they were  made,  not  materially  misleading  (after  giving  effect  to  all  supplements  and  updates  thereto);  provided that, with respect to projected financial information, (a) the Borrowers represent only  that such information was prepared in good faith based upon assumptions believed to be reasonable  at the time delivered and (b) it is understood and agreed that uncertainty is inherent in any forecasts  or projections and no assurances can be given by the Company or the other Loan Parties of the  future achievement of such performance and that actual results may vary from projected results  and such variances may be material.         SECTION 3.13.  Material Agreements.  No Loan Party nor any of the Subsidiaries is in  default  in  the  performance,  observance  or  fulfillment  of  any  of  the  obligations,  covenants  or  conditions contained in any agreement, instrument or other undertaking to which such Person is a  party or by which it or any of its property is bound in any respect that could reasonably be expected                                         92    





 






   to  result  in  a  Material  Adverse  Effect.   Immediately  prior  to,  and  after  giving  effect  to  the  occurrence of, the Effective Date, (a) no default or event of default has occurred or will occur  under any of the Material Agreements and (b) the Borrowers are not compelled under any of the  Material  Agreements  to  secure  any  obligations  thereunder  equally  and  ratably  with  the  Obligations.         SECTION 3.14.  Solvency.   On  the  Effective  Date  after  giving  effect  to  the  consummation of the Transactions, (a) the fair value of the assets of the Loan Parties, taken as a  whole,  at  a  fair  valuation,  will  exceed  their  debts  and  liabilities,  subordinated,  contingent  or  otherwise; (b) the present fair saleable value of the property of the Loan Parties, taken as a whole,  will be greater than the amount that will be required to pay the probable liability of their debts and  other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become  absolute and matured; (c) the Loan Parties, taken as a whole, will be able to pay their debts and  liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and  matured; and (d) no Loan Party will have unreasonably small capital with which to conduct the  business in which it is engaged as such business is now conducted and is proposed to be conducted  after the Effective Date.         SECTION 3.15.  Insurance.  As of the Effective Date, Schedule 3.15 sets forth a list of  all insurance policies maintained by or on behalf of the Loan Parties (it being understood that the  failure to list on such Schedule any insignificant insurance policies shall not result in a breach of  this  Section,  provided  that  each  Loan  Party  hereby represents  and  warrants  that  it  reasonably  believes that such Schedule sets forth a list of all insurance policies maintained by or on behalf of  the  Loan  Parties).   As  of  the  Effective  Date,  all  premiums  in  respect  of  the  insurance  of  the  Borrowers  and  the  Subsidiaries  have  been  paid.   The  Borrowers  reasonably  believe  that  the  insurance maintained by or on behalf of the Loan Parties is adequate.         SECTION 3.16.  Capitalization and Subsidiaries.  Schedule 3.16 sets forth (a) a correct  and  complete  list  of  the  name  and  relationship  to  the  Company  of  each  of  the  Company’s  Subsidiaries; (b) a true and complete listing of each class of each of the Borrowers’ authorized  Equity Interests (other than the Company), of which all of such issued shares are validly issued,  outstanding, fully paid and non-assessable, and owned beneficially and of record by the Persons  identified on Schedule 3.16; and (c) the type of entity of the Company and each of the Subsidiaries,  in each case as of the Effective Date.  All of the issued and outstanding Equity Interests of each  Subsidiary owned by any Loan Party have been duly authorized and issued and are fully paid and  non-assessable (to the extent such concepts are relevant with respect to such ownership interests).         SECTION 3.17.  Security Interest in Collateral.  The provisions of this Agreement and  the other Loan Documents create legal and valid Liens on all the Collateral (to the extent required  hereunder  and  thereunder)  in  favor  of  the  Administrative  Agent,  for  the  benefit  of  the  Lender  Parties, and, to the extent required hereunder and under the Collateral Documents, such  Liens  constitute (or, in the case of real property, upon filing of the Mortgages as necessary will constitute)  perfected and continuing Liens on the Collateral (solely to the extent and in the manner required  by the Collateral Documents), securing the Secured Obligations, enforceable against the applicable  Loan Party and all third parties, and having priority over all other Liens on the Collateral except  in the case of (a) Permitted Encumbrances and Permitted Liens, to the extent any such Liens would  have priority over the Liens in favor of the Administrative Agent pursuant to any Requirement of                                         93    





 






   Law  or  agreement;  and  (b)  Liens  perfected  only  by  possession  (including  possession  of  any  certificate of title), to the extent the Administrative Agent has not obtained or does not maintain  possession of such Collateral.         SECTION 3.18.  Employment Matters.  As of the Effective Date, there are no strikes,  lockouts or slowdowns against any Loan Party or any Subsidiary pending or, to the knowledge of  the Borrowers, threatened in writing which, individually or in the aggregate, could reasonably be  expected to result in a Material Adverse Effect.  The hours worked by  and payments made to  employees of the Loan Parties and the Subsidiaries have not been in violation of the Fair Labor  Standards Act or any other applicable Federal, State, local or foreign law dealing with such matters,  except as could not reasonably be expected, individually or in the aggregate, to result in a Material  Adverse Effect.  All payments due from any Loan Party or any Subsidiary, or for which any claim  may be made against any Loan Party or any Subsidiary, on account of wages and employee health  and welfare insurance and other benefits, have been paid or accrued as a liability on the books of  the Loan Party or such Subsidiary, except as could not reasonably be expected, individually or in  the aggregate, to result in a Material Adverse Effect.         SECTION 3.19.  Regulation  U;  Use  of  Proceeds.   Neither  the  Company  nor  any  Subsidiary is engaged in the business of extending credit for the purpose of purchasing or carrying  margin stock (within the meaning of Regulation U of the Board) and no part of the proceeds of  any Loan made hereunder will be used to purchase or carry any margin stock or to extend credit  to others for such a purpose that could reasonably be expected to result in a violation of Regulation  U.  The Borrowers shall have used the proceeds of the Loans in accordance with Section 5.08.         SECTION 3.20.  Sanctions/Anti-Corruption Representations.  (a) No Loan Party nor any  of its Subsidiaries is in violation of any Anti-Terrorism Laws, Anti-Corruption Laws, or Sanctions  or engages in or conspires to engage in any transaction that evades or avoids, or has the purpose  of  evading  or  avoiding,  or  attempts  to  violate,  any  of  the  prohibitions  set  forth  in  any  Anti- Terrorism Laws, Anti-Corruption Laws, or Sanctions.                 (b)   No Loan Party nor any of its Subsidiaries or any director or officer of any         Loan Party or any of its Subsidiaries or, to the Loan Parties’ knowledge, any employee of         any Loan Party or any of its Subsidiaries, is a Person (each such Person, a “Sanctioned        Person”) that is:  (i) the subject of any Sanctions, or (ii) located, organized or resident in a        country, region or territory that is, or whose government is, the subject of countrywide        Sanctions, which, as of the Effective Date, includes, the Regions of Crimea, Cuba, Iran,        North Korea and Syria.         SECTION 3.21.  Food Security Act.  Except to the extent that it could not reasonably be  expected, individually or in the aggregate, to result in a Material Adverse Effect, no Borrower has  received any written notice pursuant to Section 1324(e)(1) or (3) of the FSA and there has not been  filed any financing statement or notice, purportedly in compliance with the provisions of the FSA,  that purports to perfect a security interest in farm products purchased by any Borrower in favor of  a  secured  creditor  of  the  seller  of  such  farm  products.   Except  where  such  failure  could  not  reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, to  the extent applicable, each Borrower has registered as a buyer of farm products, pursuant to Section  1324(c)(2)(D) of the FSA, with the Secretary of State of each State in which farm products are                                         94    





 






   produced that are purchased by the Company or any of the Subsidiaries and which has a central  filing system, and each such registration is in full force and effect.         SECTION 3.22.  No  Default.   No  Default  or  Event  of  Default  has  occurred  and  is  continuing.         SECTION 3.23.  Source of Repayments.  The funds used as the source of the Borrowers’  repayments to the Lenders have not been derived, directly or indirectly, from activities in violation  of  any  law,  rule,  regulation,  order,  or  decree  of  any  Governmental  Authority,  including  those  identified specifically in Section 5.08, except where the foregoing (other than those specified in  clauses  (w)  to  (y)  of  Section  5.08),  individually  or  in  the  aggregate,  could  not  reasonably  be  expected to have a Material Adverse Effect.         SECTION 3.24.  Beneficial Ownership Certification.  As of the Effective Date, to the best  of  the  knowledge  of  the  Borrowers,  the  information included  in  any  Beneficial  Ownership  Certification provided by the Loan Parties, if applicable, is true and correct in all material respects.                                     ARTICLE IV                                                                            CONDITIONS         SECTION 4.01.  Effective Date.  The obligations of the Lenders to make Loans and of  the Issuing Banks to issue Letters of Credit hereunder shall not become effective until the date on  which each of the following conditions is satisfied in the judgment of the Administrative Agent  and the Lenders:               (a)   Credit Agreement and Loan Documents.  The Administrative Agent (or its        counsel) shall have received from each applicable party a counterpart of this Agreement        signed on behalf each such party, the Schedules to this Agreement in form and substance        reasonably acceptable to the Administrative Agent, and, except as otherwise set forth in        Section 5.15, each of the other Loan Documents (to the extent not previously provided)        and such other certificates, documents, instruments and agreements as the Lenders or the        Administrative  Agent  shall  reasonably  request  in  connection  with  the  transactions        contemplated by this Agreement, including any Notes requested by a Lender pursuant to        Section 2.11(g), payable to the order of each such requesting Lender, and written opinions        of  the  Loan  Parties’  counsel  from  all  applicable  jurisdictions  (including  New  York,        Delaware, Minnesota, West Virginia and Bermuda), addressed to the Administrative Agent        and the other Lender Parties and in form and substance acceptable to the Administrative        Agent.               (b)   Borrowing  Request.   The  Administrative  Agent  shall have  received  a        Borrowing Request in accordance with Section 2.03.               (c)   Financial  Statements  and  Projections.  To  the  extent  not  previously        provided,  the  Administrative  Agent  and  the  Lenders shall  have  received  (i)  audited        consolidated financial statements of the Company for the three most recent Fiscal Years        ended at least 90 days prior to the Effective Date; and (ii) projected consolidated financial                                          95    





 






               statements  of  the  Company  for  the  Fiscal  Years  ending  2019,  2020,  2021  and  2022,  prepared on an annual basis.           (d)   Closing Certificates; Certified Certificate of Incorporation; Good Standing  Certificates.  The Administrative Agent and the Lenders shall have received (i) a certificate  of each Loan Party, dated the Effective Date and executed by its Secretary or Assistant  Secretary, which shall (A) certify the resolutions of its Board of Directors, members or  other equivalent body authorizing the execution, delivery and performance of the Loan  Documents to which it is a party, (B) identify by name and title and bear the signatures of  the Financial Officers and any other officers of such Loan Party authorized to sign the Loan  Documents to which it is a party, and (C) contain appropriate attachments, including the  certificate or articles of incorporation, certificate of formation or organization of each Loan  Party certified by the relevant authority of the jurisdiction of organization of such Loan  Party and a true and correct copy of its bylaws or operating, limited liability company,  management  or  partnership  agreement,  and  (ii)  if  obtainable  from  the  applicable  jurisdiction,  a  long  form  good  standing  certificate  (or,  in  the  case  of  the  Bermuda  Borrowers, a certificate of compliance issued by the Registrar of Companies in Bermuda)  for each Loan Party from its jurisdiction of organization.          (e)   No Default Certificate.  The Administrative Agent and the Lenders shall  have received a certificate, signed by a Financial Officer of the Company and dated the  Effective Date (i) stating that no Default has occurred and is continuing; and (ii) stating  that the representations and warranties contained in Article III are true and correct as of  such date, except that such representations and warranties that relate solely to an earlier  date shall be true and correct in all material respects as of such earlier date.          (f)   Fees.  The Agents and the Lenders shall have received all fees required to  be paid, and all expenses for which invoices have been presented at least one Business Day  prior to the Effective Date (including the reasonable and documented out-of-pocket fees,  disbursements and expenses of legal counsel of the Administrative Agent, as set forth in  Section 9.03), on or before the Effective Date.         (g)   Lien Searches.  The Administrative Agent shall have received the results of  a recent lien search report in each of the jurisdictions where assets of the Loan Parties are  located, and such search shall reveal no Liens on any of the assets of the Loan Parties,  except for Permitted Liens or Liens discharged on or prior to the Effective Date pursuant  to a pay-off letter or other documentation satisfactory to the Administrative Agent.         (h)   Collateral Access and Control Agreements.  To the extent not previously  delivered to the Administrative Agent in connection with the Original Credit Agreement,  the  Administrative  Agent  shall  have  received  each  Collateral  Access  Agreement  and  Deposit  Account  Control  Agreement  that  is  required to  be  provided  pursuant  to  each  Security Agreement.         (i)   Solvency.   The  Administrative  Agent  shall  have  received  a  solvency  certificate from a Financial Officer of the Company.                                    96                





 






                     (j)   Pledged Stock; Stock Powers; Pledged Notes.  To the extent not previously  delivered to the Administrative Agent in connection with the Original Credit Agreement,  the Administrative Agent shall have received (i) the certificates, if any, representing the  shares of Equity Interests pledged pursuant to the Security Agreements, together with an  undated stock power for each such certificate executed in blank by a duly authorized officer  of the pledgor thereof; and (ii) each promissory note (if any) pledged to the Administrative  Agent  pursuant  to  the  Security  Agreements  endorsed (without  recourse)  in  blank  (or  accompanied by an executed transfer form in blank) by the pledgor thereof.         (k)   Filings, Registrations and Recordings.  Each document (including any UCC  financing  statement)  required  by  the  Collateral  Documents,  the  Mortgaged  Property  Requirements  or  under  law  or  reasonably  requested  by  the  Administrative  Agent  to  be  filed, registered or recorded in order to create in favor of the Administrative Agent, for the  benefit of the Lender Parties, a perfected Lien (or in the case of Equity Interests of the  Bermuda Borrowers, a first registered charge) on the Collateral described therein, prior and  superior in right to any other Person (other than with respect to Permitted Liens), shall be  in proper form for filing, registration or recordation.          (l)   Approvals.   All  governmental  and  third  party  approvals  necessary  in  connection with the Transactions and the financing contemplated hereby shall have been  obtained  and  be  in  full  force  and  effect,  and  all  applicable  waiting  periods  shall  have  expired without any action being taken or, to the knowledge of the Loan Parties after due  inquiry, threatened by any competent authority that would restrain, prevent or otherwise  impose adverse conditions on the Transactions or the financing contemplated hereby.          (m)   Insurance.   Except  as  required  by  clause  (n)  below,  the  Administrative  Agent shall have received evidence of insurance coverage in compliance with the terms of  Section  5.09  in  form,  scope  and  substance  satisfactory  to  the  Administrative  Agent,  together with certificates of insurance naming the Administrative Agent, on behalf of the  Lender Parties, as an additional insured or loss payee, as applicable, to the extent required  under Section 5.09.         (n)   Flood  Insurance.   The  Administrative  Agent  shall  have  received,  with  respect to each Mortgaged Property subject to a Mortgage, (i) a completed “Life of Loan”  FEMA Standard Flood Hazard Determination and, if the area in which any Improvements  are located on any Mortgaged Property is designated a “special flood hazard area” in any  flood insurance rate map published by FEMA (or any successor agency), a notice with  respect to special flood hazard area status and flood disaster assistance, duly executed on  behalf of the Borrowers and (ii) if applicable, evidence of insurance with respect to the  Mortgaged Properties in form and substance reasonably satisfactory to the Administrative  Agent and in an amount and otherwise sufficient to comply with all applicable rules and  regulations promulgated pursuant to the Flood Insurance Acts.          (o)   Regulatory Matters. All legal (including tax) and regulatory matters shall  be satisfactory to the Administrative Agent and the Lenders, including but not limited to  compliance with all applicable requirements of Regulations T, U and X of the Board of  Governors of the Federal Reserve System.                                   97                





 






               (p)   “Know Your Customer” Requirements.                       (i)   The Administrative Agent and the Lenders shall have received all              documentation and other information requested by the Administrative Agent and              required under applicable “know your customer”, Beneficial Ownership Regulation              and anti-money laundering rules and regulations, including all information required              to be delivered pursuant to Section 9.14.                     (ii)  Any Borrower that qualifies as a “legal entity customer” under the              Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a              Beneficial Ownership Certification in relation to such Borrower.               (q)   Original  Credit  Agreement.  All  principal,  interest,  fees  and  other        obligations (other than contingent indemnification obligations as to which no unsatisfied        claim has been asserted) under the Original Credit Agreement shall have been (or shall        substantially  contemporaneously  be)  refinanced  in  full  with  the  proceeds  of  Loans        hereunder as contemplated by Section 9.20  and cash on hand of the Borrowers.         The Administrative Agent shall notify the Borrowers and the Lenders of the Effective Date,  and such notice shall be conclusive and binding.         For purposes of determining compliance with the conditions specified in this Section 4.01,  each Lender that has signed this Agreement shall be deemed to have consented to, approved or  accepted or to be satisfied with, each document or other matter required thereunder to be consented  to or approved by or acceptable or satisfactory to a Lender.         SECTION 4.02.  Each Credit Event.  The obligations of (a) each Lender to make a Loan  on the occasion of any Borrowing and (b) each Issuing Bank to issue, amend, renew, reinstate or  extend  any  Letter  of  Credit  (it  being  understood  that  the  conversion  into  or  continuation  of  a  Eurodollar Loan or, solely with respect to Section 4.02(a), the amendment, renewal, reinstatement  or extension of a Letter of Credit does not constitute a Borrowing or the issuance of a Letter of  Credit), are subject to the satisfaction of the following conditions:               (a)   The  representations  and  warranties  of  the  Loan  Parties  set  forth  in  this        Agreement shall be true and correct in all material respects on and as of the date of such        Borrowing or the date of issuance of such Letter of Credit, as applicable, except that such        representations and warranties (A) that relate solely to an earlier date shall be true and        correct in all material respects as of such earlier date and (B) shall be true and correct in all        respects to the extent they are qualified by a materiality standard.               (b)   At the time of and immediately after giving effect to such Borrowing or the        issuance,  amendment,  renewal,  reinstatement  or  extension  of  such  Letter  of  Credit,  as        applicable, no Default or Event of Default shall have occurred and be continuing.               (c)   After giving effect to any Borrowing or the issuance, amendment, renewal,        reinstatement or extension of any Letter of Credit, the Aggregate Revolving Exposure shall        not exceed the (i) aggregate Revolving Commitments, or (ii) solely during a Borrowing                                          98    





 






         Base Period, the lesser of (x) the Borrowing Base as in effect at such time and (y) the        aggregate Revolving Commitments as in effect at such time.         Each Borrowing and each issuance of a Letter of Credit shall be deemed to constitute a  representation and warranty by the Borrowers on the date thereof as to the matters specified in  paragraphs  (a),  (b)  and  (c)  of  this  Section  4.02.  Each  amendment,  renewal,  reinstatement  or  extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the  Borrowers  on  the  date  thereof  as  to  the  matters  specified  in  paragraphs  (b)  and  (c)  of  this  Section 4.02.                                     ARTICLE V                                                                     AFFIRMATIVE COVENANTS          Until all Obligations have been Fully Satisfied, each Loan Party executing this Agreement   covenants and agrees with the Lender Parties that:          SECTION 5.01.  Financial  Statements;  Borrowing  Base  and  Other  Information.   The  Borrowers  will  furnish  to  the  Administrative  Agent (which  shall  in  turn  furnish  to  each  other  Lender Party):               (a)   within 90 days after the end of each Fiscal Year, its audited consolidated        balance sheet and related statements of operations, stockholders’ equity and cash flows as        of the end of and for such Fiscal Year, setting forth in each case in comparative form the        figures for (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year,        all reported on by a “Big Four” accounting firm, or other independent public accountants        of recognized national standing that are reasonably acceptable to the Administrative Agent        (without a “going concern” or like qualification or exception and without any qualification        or exception as to the scope of such audit), to the effect that such consolidated financial        statements  present  fairly  in  all  material  respects the  financial  condition  and  results  of        operations of the Company on a consolidated basis, accompanied by any final management        letter prepared by said accountants;               (b)   within 45 days after the end of each of the first three Fiscal Quarters, the        Company’s  unaudited  consolidated  balance  sheet  and related  statements  of  operations,        stockholders’ equity and cash flows as of the end of and for such Fiscal Quarter and the        then elapsed portion of the Fiscal Year, setting forth in each case in comparative form the        figures for the corresponding period or periods of (or, in the case of the balance sheet, as        of the end of) the previous Fiscal Year;               (c)   concurrently with any delivery of financial statements under paragraph (a)        or (b) above, a Compliance Certificate, (i) certifying, in the case of the financial statements        delivered  under  paragraph  (b)  above,  as  presenting fairly  in  all  material  respects  the        financial  condition  and  results  of  operations  of  the  Company  on  a  consolidated  basis,        subject to normal year-end audit adjustments and the absence of footnotes; (ii) certifying        whether a Default or Event of Default has occurred and, if a Default or Event of Default        has occurred, specifying the details thereof and any action taken or proposed to be taken                                          99    





 






               with  respect  thereto;  (iii)  setting  forth  reasonably  detailed  calculations  demonstrating  compliance with Section 6.13; and (iv) stating whether any applicable change in GAAP  that  has  a  material  effect  on  any  financial  statements  or  in  the  application  thereof  has  occurred since the later of the date of the audited financial statements referred to in Section  3.04 and the date of the prior certificate delivered pursuant to this paragraph (c) indicating  such a change and, if any such change has occurred, specifying the effect of such change  on the financial statements accompanying such certificate;         (d)   [Reserved];         (e)   as soon as available, but in any event not more than 60 days following the  beginning  of  each  Fiscal  Year,  a  copy  of  the  plan  and  forecast  (including  a  projected  consolidated balance sheet, income statement and statement of cash flow) of the Company  for  each  quarter  of  the  upcoming  Fiscal  Year,  in  form  reasonably  satisfactory  to  the  Administrative Agent;         (f)   upon  the  commencement  of  any  Borrowing  Base  Period and  during  the  continuation thereof, (i) a Borrowing Base Certificate for the most recent fiscal month that  ended at least 10 Business Days prior to such date and (ii) thereafter, a Borrowing Base  Certificate, as soon as available but in any event within 10 Business Days after the end of  each fiscal month (or, within five Business Days after the end of each calendar week (it  being understood that a calendar week ends at midnight on Saturday), during any Weekly  Reporting Period), in each case, which calculates the Borrowing Base as of the last day of  such fiscal period then ended, together with supporting information in connection therewith  and any additional reports with respect to the Borrowing Base as the Administrative Agent  may reasonably request;         (g)   in connection with the delivery of any Borrowing Base Certificate required  to be delivered pursuant to this Agreement and at such other times as may be reasonably  requested by the Administrative Agent, as of the fiscal period then ended, all delivered  electronically in a formatted file reasonably acceptable to the Administrative Agent:               (i)   a  summary  aging  of  each  Borrower’s  and  Loan  Guarantor’s        Accounts (based on invoices aged by invoice date and the balance due for each        Account Debtor) reconciled to the Borrowing Base Certificate delivered as of such        date prepared in a manner reasonably acceptable to the Administrative Agent;               (ii)  a  schedule  detailing  each  Borrower’s  and  Loan  Guarantor’s        Inventory,  in  form  reasonably  satisfactory  to  the  Administrative  Agent,  (A)  by        location  (showing  Inventory  in  transit,  any  Inventory  located  with  a  third  party        under  any  consignment,  bailee  arrangement  or  warehouse  agreement),  by  class        (work-in-process and  finished  goods), by  product type and by volume on hand,        which  Inventory  shall  be  valued  at  the  lower  of  cost  (standard  and/or  moving        average)  or  market  and  adjusted  for  Reserves  as  the  Administrative  Agent  has        previously  indicated  to  the  Borrower  Representative  are  deemed  by  the        Administrative Agent to be appropriate; (B) including a report of Inventory aging                                   100                





 






               by fresh plant and prepared foods in total, and LOCOM reports to support reserves;              and (C) reconciled to the Borrowing Base Certificate delivered as of such date;                      (iii)  a worksheet of calculations prepared by the Borrowers to determine               Eligible Accounts and Eligible Inventory, such worksheets detailing the Accounts               and  Inventory  excluded  from  Eligible  Accounts  and  Eligible  Inventory  and  the               reason for such exclusion;                      (iv)  a reconciliation of each Borrower’s and Loan Guarantor’s Accounts               between  the  amounts  shown  in  each  Borrower’s  and  Loan  Guarantor’s  general               ledger and financial statements and the reports delivered pursuant to paragraph (i)              above; and                     (v)   a reconciliation of the loan balance per each Borrower’s and Loan               Guarantor’s general ledger to the loan balance under this Agreement;                (h)   [Reserved];                (i)   promptly  after  the  same  become  publicly  available, copies  of  all  proxy         statements and periodic reports on Form 10-K, Form 10-Q and Form 8-K that are filed by         the Company or any Subsidiary with the SEC or any national securities exchange, as the         case may be; provided that any documents required to be delivered pursuant to paragraphs        (a) and (b) and this paragraph (i) shall be deemed to have been delivered on the date (i) on        which the Company posts such documents, or provides a link thereto on the Company’s        website on the Internet; or (ii) on which such documents are posted on the Company’s        behalf on the Platform or another relevant website, if any to which each Lender Party has        access  (whether  a  commercial,  third-party  website  or  whether  sponsored  by  the        Administrative Agent); and provided, further, that the Company shall notify (which may        be by facsimile or electronic mail) the Administrative Agent of the posting of any such        documents and provide to the Administrative Agent by electronic mail electronic versions        (i.e., soft copies) of such documents; and               (j)   promptly following any request therefor, such other information regarding        the operations, business affairs and financial condition of any Borrower or any Subsidiary,        or compliance with the terms of this Agreement, as the Administrative Agent or any other        Lender Party may reasonably request.         SECTION 5.02.  Notices of Material Events.  The Borrower Representative will furnish  to the Administrative Agent (which shall post such notices to the other Lender Parties) prompt  written notice, accompanied by a statement of a Financial Officer or other executive officer of the  Borrower Representative setting forth in reasonable detail the nature of the event or development  requiring such notice and any action taken or proposed to be taken with respect thereto, of the  following:               (a)   the occurrence of any Default or Event of Default;               (b)   receipt  of  any  notice  of  any  governmental  investigation  or  any        governmental or other litigation or proceeding commenced or threatened against any Loan                                        101    





 






               Party that (i) could reasonably be expected to result in a Material Adverse Effect (including  any such litigation or proceeding (A) seeking injunctive relief or (B) that is asserted or  instituted against any Plan, its fiduciaries or its assets) or (ii) alleges criminal misconduct  by the Company or the Subsidiaries;         (c)   any Lien (other than Permitted Liens) or claim made or asserted against any  of the Collateral in the amount of $25,000,000 or more;         (d)   any damage, destruction or other casualty event involving the Collateral in   the amount of $25,000,000 or more, whether or not covered by insurance;          (e)   any  and  all  written  notices  of  default  received  by the  Company  or  the   Subsidiaries  under  or  with  respect  to  any  leased  location  or  public  warehouse  where   Collateral is located with a fair market value in excess of $25,000,000;          (f)   to the extent not provided pursuant to Section 5.01(i), all (i) amendments to  the Mexican Credit Facility to the extent the aggregate outstanding principal balance under  the  Mexican  Credit  Facility  is  in  excess  of  $25,000,000  at  such  time,  and  (ii)  material  amendments to the Material Agreements, together with a copy of each such amendment;          (g)   concurrently with the delivery of each Borrowing Base Certificate pursuant  to Section 5.01(f), a mark-to-market reconciliation with respect to the Swap Obligations  that constitute Secured Obligations;         (h)   the occurrence of any ERISA Event that, alone or together with any other   ERISA Events that have occurred, could reasonably be expected to result in liability of the   Borrowers and their Subsidiaries in an aggregate amount exceeding $25,000,000, any such   notice to be delivered concurrently with the delivery of a Compliance Certificate under   Section 5.01(c);         (i)   receipt by the Loan Parties of any notice or notices (or amendment to any  previous notice) under PACA, PSA or other similar Requirements of Law (in each case,  other than any such notice consisting solely of a provision in the applicable invoice relating  thereto reserving a seller’s rights under such acts), in respect of claims in an aggregate  amount at any one time outstanding for all such notices of $25,000,000 or more, to preserve  the benefits of any trust applicable to any assets of any Loan Party under the provisions of  PACA, PSA or other similar Requirements of Law (and the Loan Parties shall provide, or  shall  cause  to  be  provided,  promptly  to  the  Administrative  Agent  a  true,  correct  and  complete copy of such notice or notices (or amendment), as the case may be, and other  information  delivered  in  connection  therewith),  any  such  notice  to  be  delivered  concurrently with the delivery of a Compliance Certificate under Section 5.01(c);         (j)   any  change in respect of the Disclosed Matters that could reasonably be  expected to result in a Material Adverse Effect;         (k)   the occurrence of any event described in Section 3.07(b) or 3.07(c), in each  case as and when any such notice is required to be delivered pursuant to each Section;                                   102                





 






               (l)   concurrently with the delivery of each Compliance Certificate pursuant to        Section  5.01(c),  the  assertion  of  any  claim  pursuant  to  applicable  Environmental  Law,        including  alleged  violations  of  or  non-compliance  with  permits,  licenses  or  other        authorizations issued pursuant to applicable Environmental Law by any Person against, or        with respect to the activities of, any Loan Party that would (either individually or in the        aggregate) reasonably be expected to result in a material Environmental Liability; and               (m)   any other development that results in, or could reasonably be expected to        result in, a Material Adverse Effect.         SECTION 5.03.  Existence; Conduct of Business.  Each Loan Party will, and will cause  each Subsidiary to, (a) do or cause to be done all things necessary to preserve, renew and keep in  full force and effect its legal existence and the rights, qualifications, licenses, permits, franchises,  governmental  authorizations,  intellectual  property rights,  licenses  and  permits  material  to  the  conduct  of  its  business,  and  maintain  all  requisite  authority  to  conduct  its  business  in  each  jurisdiction in which its business is conducted, in each case except where the failure to so preserve,  renew, keep in full force and effect or maintain could not reasonably be expected to result in a  Material Adverse Effect; provided that the foregoing shall not prohibit any merger, consolidation,  liquidation or dissolution permitted under Section 6.03 or 6.05; and (b) carry on and conduct its  business,  in  all  material  respects,  in  the  poultry industry  and  such  other  activities  that  are substantially similar, related or incidental thereto (including, without limitation, processing,  packaging, distribution and wholesales of poultry and related or similar products).         SECTION 5.04.  Payment  of  Obligations.   Each  Loan  Party  will,  and will  cause  each  Subsidiary to, pay or discharge all Material Indebtedness as and when due (except to the extent  not constituting an Event of Default under paragraph (f) or (g) of Article VII), all Taxes and other  claims, which claims, if unpaid, could result in a Lien on any Loan Party’s property, before the  same shall become delinquent or in default, except where (a) the validity or amount thereof is  being contested in good faith by appropriate proceedings, (b) such Loan Party or such Subsidiary  has set aside on its books adequate reserves with respect thereto in accordance with GAAP or  (c) the failure to make payment pending such contest could not reasonably be expected to result in  a Material Adverse Effect; it being understood that, to the extent that certain Taxes or other such  claims cannot (pursuant to contractual agreement or Requirements of Law) be contested before  such Taxes or other amounts become delinquent or in default, a Loan Party shall be deemed to be  in satisfaction of clause (a) above if such Loan Party timely commences appropriate proceedings  after the earliest date that it is permitted to contest such Taxes or other claims by such contractual  agreement or Requirements of Law.         SECTION 5.05.  Maintenance of Properties.  Each Loan Party will, and will cause each  Subsidiary to, do all things necessary to at all times, maintain, preserve and protect each Mortgaged  Property and all other material property, whether real or personal, and keep such property in good  repair,  working  order  and  condition  (other  than  wear  and  tear  and  casualty  and  condemnation  occurring in the ordinary course of business).         SECTION 5.06.  Books and Records; Inspection Rights.  Without limiting Sections 5.11  and 5.12, each Loan Party will, and will cause each Subsidiary to, (a) keep proper books of record  and account in which full, true and correct entries are made of all dealings and transactions in                                        103    





 






   relation  to  its  business  and  activities  and  (b)  permit  any  representatives  designated  by  the  Administrative  Agent  or  any  other  Lender  Party  (including  employees  of  the  Administrative  Agent, any other Lender Party or any consultants, accountants, lawyers and appraisers retained by  the  Administrative  Agent),  upon  reasonable  prior  notice,  to  visit  and  inspect  its  properties,  to  examine  and  make  extracts  from  its  books  and  records  (including  environmental  assessment  reports  and  Phase  I  or  Phase  II  studies),  in  each  case  that  are  not  protected  by  attorney-client  privilege or bound by confidentiality agreements that have been entered into in the ordinary course  of business and consistent with historical practice, and to discuss its affairs, finances and condition  with its officers and independent accountants, all at such reasonable times during normal business  hours and as often as reasonably requested (provided that (i) the obligation of the Company to  reimburse  the  Lender  Parties  for  the  expenses  of  any  such  inspection  shall  be  limited  to  reimbursing the Administrative Agent for its expenses that are incurred in connection with two  visits  annually  unless  an  Event  of  Default  exists, in  which  case  there  shall  be  no  limit  on  the  Company’s obligation to reimburse such expenses, and (ii) all visits and inspections by or on behalf  of any Lender Party (other than the Administrative Agent) shall be conducted concurrently with  any  such  visit  or  inspection  that  is  conducted  by  the  Administrative  Agent  or  its  designated  representatives),  and,  in  each  case,  with  a  reasonable  opportunity  for  a  representative  of  the  Company  to  be  present.   The  Loan  Parties  acknowledge  that  the  Administrative  Agent,  after  exercising its rights of inspection, may prepare and distribute to the other Lender Parties certain  Reports pertaining to the Loan Parties’ assets for internal use by such Lender Parties.         SECTION 5.07.  Compliance with Laws and Contractual Obligations.               (a)   Each Loan Party will, and will cause each Subsidiary to, comply with all of        its contractual obligations and Requirements of Law, except where the failure to do so,        individually or in the aggregate, could not reasonably be expected to result in a Material        Adverse  Effect.   Borrowers  will  maintain  in  effect policies  and  procedures  reasonably        designed to promote compliance by the Loan Parties, their Subsidiaries and their respective        directors, officers, employees and agents (solely to the extent any Loan Party exercises        operational control over any such agent) with applicable Anti-Terrorism Laws and Anti-       Corruption Laws.               (b)   In  addition  to  and  without  limiting  the  generality of  paragraph  (a),  each        Loan Party will, and will cause each Subsidiary and ERISA Affiliate to, (i) comply with        all  applicable  provisions  of  ERISA  and  the  Code  and  the  regulations  and  published        interpretations thereunder with respect to all Plans, or any similar such laws, regulations        and published interpretations applicable in jurisdictions and countries other than the United        States with respect to all other pension plans, except where the failure to comply could not        reasonably be expected to result in a Material Adverse Effect, (ii) not take any action or        fail  to  take  action  the  result  of  which  would  result  in  a  liability  to  the  PBGC  or  to  a        Multiemployer Plan in an amount that could reasonably be expected to result in a Material        Adverse  Effect  and  (iii)  furnish  to  the  Administrative  Agent  upon  the  Administrative        Agent’s request such additional information about any Plan concerning compliance with        this covenant as may be reasonably requested by the Administrative Agent.         SECTION 5.08.  Use of Proceeds.  The proceeds of the Loans will be used (a) on the  Effective  Date,  (i)  for  the  PPC  Refinancing,  and  (ii)  to  pay  the  fees  and  expenses  incurred  in                                        104    





 






   connection with the Transactions and (b) on and after the Effective Date, to finance the general  corporate purposes of the Borrowers (including Capital Expenditures, Permitted Acquisitions, to  fund working capital, payments of principal and interest on the Loans, and any refinancing(s) of  or modifications to Indebtedness permitted in this Agreement, subject to the relevant limitations  contained in this Agreement).  No part of the proceeds of any Loan and no Letter of Credit will be  used,  whether  directly  or  indirectly,  for  any  purpose  that  entails  a  violation  of  any  of  the  Regulations of the Board, including Regulations T, U and X.  No Loan Party will, directly or  indirectly, use the proceeds of the Loans, or lend, contribute or otherwise make available such  proceeds  to  any  subsidiary,  joint  venture  partner  or  other  Person  (w)  to  fund  in  violation  of  Sanctions any activities or business of or with any Person, or in any country, region, or territory,  that, at the time of such funding, is, or whose government is, the subject of countrywide Sanctions,  which includes, as of the Effective Date, the Regions of Crimea, Cuba, Iran, North Korea and Syria  (x) in any other manner that would result in a violation of Sanctions by any Person (including any  Person participating in the  Loans, whether as underwriter,  advisor, investor, or otherwise),  (y)  directly or indirectly, for any payments to any governmental official or employee, political party,  official  of  a  political  party,  candidate  for  political  office,  or  anyone  else  acting  in  an  official  capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation  of any Anti-Corruption Laws that may be applicable, or (z) in violation of any other law, rule,  regulation, order or decree of any Government Authority except, in the case of this clause (z),  where the foregoing, individually or in the aggregate, could not reasonably be expected to have a  Material Adverse Effect.         SECTION 5.09.  Insurance.  Each  Loan Party will, and will cause each Subsidiary to,  maintain with financially sound and reputable carriers having a financial strength rating of at least  A- by A.M. Best Company at the time of the initial bindings or any renewals thereof (a) insurance  in such amounts (with no greater risk retention) and against such risks (including loss or damage  by fire and loss in transit, theft, burglary, pilferage, larceny, embezzlement, and other criminal  activities; business interruption; and general liability) and such other hazards, as is customarily  maintained by companies of established repute engaged in the same or similar businesses operating  in the same or similar locations; provided that the Borrowers and the Subsidiaries may self-insure  for workmen’s compensation, crime, general liability, auto liability, employee benefits, property  risks and live chicken inventory in accordance with applicable industry standards and in a manner  consistent with other similarly situated Persons in the same industry; provided, further, that the  Borrowers and the Subsidiaries shall not self-insure for general liability, auto liability or property  risks in excess of the first $10,000,000 of loss deductible with respect thereto without the consent  of the Administrative Agent; (b) if any Improvements on any portion of any Mortgaged Property  are located in an area identified by FEMA as an area having special flood hazards pursuant to the  Flood Insurance Acts, a policy of flood insurance with financially sound and reputable insurance  companies that (i) covers such Improvements of such Mortgaged Property that are located in a  flood zone, and (ii) is written in an amount and otherwise sufficient to comply with all applicable  rules and regulations promulgated pursuant to Flood Insurance Acts; and (c) all other insurance  required pursuant to the Collateral Documents.  The Borrowers will furnish to the Lenders, upon  request  of  the  Administrative  Agent,  information  in  reasonable  detail  as  to  the  insurance  so  maintained.  All such insurance policies, to the extent such insurance policies by their terms insure  any portion of the Collateral, shall name the Administrative Agent (for the benefit of the Lender  Parties) as an additional insured or as a loss payee, as applicable.                                         105    





 






         SECTION 5.10.  Casualty  and  Condemnation.   The  Borrowers  (a)  will furnish  to  the  Administrative Agent (which shall in turn provide such notice to the Collateral Agent and the other  Lender Parties) prompt written notice of any casualty or other insured damage to any material  portion of the Collateral or the commencement of any action or proceeding for the taking of any  material  portion  of  the  Collateral  or  interest  therein  under  power  of  eminent  domain  or  by  condemnation or similar proceeding and (b) will ensure that the Net Proceeds of any such event  (whether in the form of insurance proceeds, condemnation awards or otherwise) are collected and  applied in accordance with the applicable provisions of this Agreement.         SECTION 5.11.  Appraisals.  At intervals and frequency as reasonably specified by the  Administrative Agent or the Collateral Agent, the Borrowers and the Subsidiaries will provide the  Administrative  Agent  and  the  Collateral  Agent  with appraisals  or  updates  thereof  of  their  Inventory, from an appraiser selected and engaged by the Administrative Agent or the Collateral  Agent, as applicable, and prepared on a basis reasonably satisfactory to the Administrative Agent  and the Collateral Agent, such appraisals and updates to include, without limitation, information  required by Requirements of Law.  Only one such appraisal per calendar year shall be at the sole  expense  of  the  Loan  Parties;  provided  that  notwithstanding  such  limitation,  (a)  if  a  Minimum  Availability Period has been in effect for a period of at least 30 consecutive days during such  calendar year, an additional appraisal (to the extent requested by the Administrative Agent) shall  be at the sole expense of the Loan Parties, (b) if a Borrowing Base Period is in effect during such  calendar year, an additional appraisal (to the extent requested by the Administrative Agent) shall  be at the sole expense of the Loan Parties, provided further, for the avoidance of doubt, there shall  be no more than three such appraisals during such calendar year and (c) if an Event of Default has  occurred and is continuing, then there shall be no limitation as to number and frequency of such  appraisals that shall be at the sole expense of the Loan Parties.  For purposes of this Section 5.11,  it is understood and agreed that a (i) single appraisal may consist of examinations conducted at  multiple relevant sites and involve one or more relevant Loan Parties and their assets and (ii) only  the reasonable and documented out-of-pocket charges, costs and expenses in connection with such  appraisals shall be required to be reimbursed by the Loan Parties pursuant to this Section.         SECTION 5.12.  Field Examinations.  At intervals and frequency as reasonably specified  by the Administrative Agent or the Collateral Agent the Borrowers and the Subsidiaries will allow  the Administrative Agent and the Collateral Agent to conduct field examinations or updates thereof  during normal business hours to ensure the adequacy of Collateral and related reporting and control  systems.  Two such field examinations per calendar year shall be at the sole expense of the Loan  Parties; provided that the Administrative Agent and the Collateral Agent agree not to conduct (or  cause to be conducted) more than one such field examination every six months; and provided,  further,  that  (a)  notwithstanding  the  limitation  in  the  preceding  proviso,  an  additional  field  examination (and, for the avoidance of doubt, three such field examinations during such calendar  year) shall be at the sole expense of the Loan Parties if a Minimum Availability Period has been  in effect for a period of at least 30 consecutive days during such calendar year; and (b) if an Event  of  Default  has  occurred  and  is  continuing,  then  there  shall  be  no  limitation  as  to  number  and  frequency of such field examinations that shall be at the sole expense of the Loan Parties.  For  purposes of this Section 5.12, it is understood and agreed that a (i) single field examination may  consist of examinations conducted at multiple relevant sites and involve one or more relevant Loan  Parties and their assets; and (ii) only the reasonable and documented out-of-pocket charges, costs                                         106    





 






   and expenses in connection with such field examinations shall be required to be reimbursed by the  Loan Parties pursuant to this Section.         SECTION 5.13.  Additional Collateral; Further Assurances.  (a) Subject to Requirements  of Law, each Borrower and each other U.S. Loan Party shall cause (i) any Material Subsidiary  created  or  acquired  after  the  Effective  Date,  (ii) any  Subsidiary  that  has  otherwise  become  a  Material Subsidiary after the Effective Date (it being understood that a Subsidiary’s status as a  Material Subsidiary for the purposes of clauses (i) and (ii) shall be as determined as of the most  recent date upon which financial statements have been required to be delivered pursuant to Section  5.01(a) or (b)) or (iii) any Domestic Subsidiary or Foreign DRE whose Equity Interests are not  held directly or indirectly by a Foreign Subsidiary that is treated as a corporation for U.S. federal  income tax purposes that incurs any Indebtedness for borrowed money (other than intercompany  Indebtedness) or Guarantees any such Indebtedness to become, not later than 45 days after the  occurrence of any of the foregoing events or determinations, as applicable (which period may be  extended by the Administrative Agent in its sole discretion), a U.S. Loan Guarantor and thus a  U.S. Loan Party by executing the Joinder Agreement set forth as Exhibit M hereto (the “Joinder  Agreement”).   Upon  execution  and  delivery  thereof, each  such  Person  (x)  shall  automatically  become a U.S. Loan Guarantor hereunder and thereupon shall have all of the rights, benefits, duties  and obligations in such capacity under the Loan Documents and (y) will, subject to the limitations  relating to pledges of Equity  Interests in paragraph (b) of this Section 5.13, grant Liens to the  Administrative Agent (for the benefit of the Lender Parties) in any property of such U.S. Loan  Party which constitutes Collateral.  Notwithstanding the foregoing, and for the avoidance of doubt,  (i)  neither  PPC  Mexico  nor  any  of  PPC  Mexico’s  subsidiaries  and  (ii)  none  of  the  Moy  Park  Entities is or shall be required to become a U.S. Loan Party.               (b)   To  secure  the  prompt  payment  and  performance  of  all  the  U.S.  Secured        Obligations,  each  Borrower  and  each  Subsidiary  that  is  a  U.S.  Loan  Party  will  cause        (i)  100%  of  the  issued  and  outstanding  Equity  Interests  of  each  of  (A)  the  Domestic        Subsidiaries other than Domestic Subsidiaries whose Equity Interests are owned, directly        or  indirectly,  by  a  Foreign  Subsidiary  that  is  treated  as  a  corporation  for  U.S.  Federal        income tax purposes, and (B) the Foreign DREs whose Equity Interests are not held directly        or indirectly by a Foreign Subsidiary that is treated as a corporation for U.S. federal income        tax purposes, other than any such Foreign DRE where the assets of such Foreign DRE        include  Equity  Interests  of  a  “controlled  foreign  corporation”  (within  the  meaning  of        Section 957(a) of the Code) that, when aggregated with any other Equity Interests held by        any other Affiliates of such Foreign DRE would constitute ownership of greater than 65%        of the total combined classes of Equity Interests entitled to vote in such controlled foreign        corporation  (it  being  understood  that,  pursuant  to paragraph  (a)  of  this  Section,  such        Foreign DRE shall pledge all of its assets which do not constitute Equity Interests in such        controlled  foreign  corporation  and  such  Equity  Interest  in  the  controlled  foreign        corporation such that, when aggregated with the Equity Interests of such controlled foreign        corporation pledged by any other Affiliates of the Foreign DRE, the total Equity Interests        pledged by the Foreign DRE will constitute a pledge of 65% of the total combined classes        of Equity Interests entitled to vote in such controlled foreign corporation); (ii) 65% of the        Equity Interests constituting the total combined classes of Equity Interests entitled to vote        in each First-Tier Foreign Subsidiary that is not a Foreign DRE; and (iii) 100% of the non-       voting Equity Interests of each First-Tier Foreign Subsidiary that is not a Foreign DRE, to                                        107    





 






               be  subject  at  all  times  to  a  valid,  perfected  first  priority  security  interest  (subject  to  Permitted Liens) in favor of the Administrative Agent (for the benefit of the Lender Parties)  pursuant to the terms and conditions of the Loan Documents as the Administrative Agent  shall reasonably request; provided that, notwithstanding the foregoing, no U.S. Loan Party  shall be required to pledge any Equity Interests of PPC Mexico or its subsidiaries.  The  Borrowers agree that if (x) the Administrative Agent notifies the Borrower Representative  that as a result of a Change in Law there is a reason to believe that a pledge of a greater  percentage  of  any  Foreign  Subsidiary’s  voting  Equity  Interests  or  a  guarantee  by  any  Foreign Subsidiary of the U.S. Secured Obligations could not reasonably be expected to  result in a “deemed dividend” under Section 956 of the Code or any other Tax liability to  the Borrowers or any Foreign Subsidiary which would not have otherwise resulted absent  such pledge and (y) subsequent to the receipt of such notice the Borrower Representative  reasonably  determines  (which  determination  the  Borrower  Representative  agrees  to  consider, in consultation with its counsel and other tax advisors, promptly following receipt  of such notice from the Administrative Agent) that a pledge of more than 65% of the total  combined voting power of all classes of Equity Interests entitled to vote of such Foreign  Subsidiary  or  a  guarantee  by  such  Foreign  Subsidiary  of  the  U.S.  Secured  Obligations  could not reasonably be expected to result in such a “deemed dividend” or any other Tax  liability  to  the  Borrowers  or  any  Foreign  Subsidiary  which  would  not  have  otherwise  resulted absent such pledge, the applicable Borrower will promptly pledge such greater  percentage of the voting Equity Interests of each such Foreign Subsidiary and cause each  such Foreign Subsidiary to provide a guarantee of the U.S. Secured Obligations, in each  case to the extent that the foregoing could not reasonably be expected to result in such a  “deemed dividend” under Section 956 of the Code or other Tax liability to the Borrowers  or  any  Foreign  Subsidiary.  Furthermore,  the  Lenders  agree  that  if  (x)  the  Borrower  Representative notifies the Lenders that as a result of a Change in Law there is a reason to  believe  that  a  pledge  of  a  lower  percentage  of  any Foreign  Subsidiary’s  voting  Equity  Interests would be reasonably necessary in order to avoid there being a “deemed dividend”  under  Section  956  of  the  Code  or  otherwise  triggering  material  Tax  liability  to  the  Borrowers or any Foreign Subsidiary and (y) subsequent to the receipt of such notice, each  Lender  reasonably  determines (which determination each  Lender  agrees  to consider, in  consultation with its counsel and other tax advisors, promptly following receipt of such  notice  from  the  Borrower  Representative)  that  a  pledge  of  less  than  65%  of  the  total  combined voting power of all classes of Equity Interests entitled to vote of such Foreign  Subsidiary  would  be  reasonably  necessary  in  order  to  avoid  there  being  a  “deemed  dividend” under Section 956 of the Code or otherwise triggering material Tax liability to  the Borrowers or any Foreign Subsidiary, the applicable Borrower may promptly pledge  such lower percentage of the voting Equity Interests of each such Foreign Subsidiary and  the Administrative Agent (for the benefit of the Lender Parties) shall promptly release any  excess percentage, to the extent necessary such that the foregoing would avoid there being  a “deemed dividend” under Section 956 of the Code or otherwise triggering material Tax  liability to the Borrowers or any Foreign Subsidiary.          (c)   Subject to Requirements of Law, each Bermuda Borrower and each other  Bermuda Loan Party shall cause (i) any Material Subsidiary that is organized under the  laws of Bermuda and is created or acquired after the Effective Date, (ii) any Subsidiary  that  is  organized  under  the  laws  of  Bermuda  and  has  otherwise  become  a  Material                                  108                





 






               Subsidiary  after  the  Effective  Date  (it  being  understood  that  a  Subsidiary’s  status  as  a  Material Subsidiary for the purposes of clauses (i) and (ii) above shall be as determined as  of the most recent date upon which financial statements have been required to be delivered  pursuant to Section 5.01(a) or (b)) or (iii) any Subsidiary that is organized under the laws  of Bermuda that incurs any Indebtedness for borrowed money (other than intercompany  Indebtedness) or Guarantees any such Indebtedness to become, not later than 45 days after  the  occurrence  of  any  of  the  foregoing  events  or  determinations,  as  applicable  (which  period may be extended by the Administrative Agent in its sole discretion), a Bermuda  Loan  Guarantor  by  executing  a  guarantee  agreement  that  guarantees  repayment  of  the  Bermuda Secured  Obligations (which  guarantee  agreement shall be in substantially the  form of the Bermuda Guaranty) and a security agreement (which shall, among other things,  pledge 100% of the Equity Interests in each such Subsidiary and grant a security interest  in all the personal property of each such Subsidiary, the foregoing to be in substantially the  form of the Bermuda Pledge Agreement, the Bermuda Security Agreement or the Puerto  Rico Security Agreement, as applicable) that secures repayment of the Bermuda Secured  Obligations, together with such other documentation and filings that the Administrative  Agent may reasonably require in order to perfect its valid, perfected first priority security  interest  (subject  to  Permitted  Liens)  in  the  assets  subject  to  the  terms  of such  Security  Agreement.         (d)   Without limiting the foregoing, each Loan Party will, and will cause each  Subsidiary  to,  execute  and  deliver,  or  cause  to  be executed  and  delivered,  to  the  Administrative Agent such documents, agreements and instruments, and will take or cause  to be taken such further actions (including the filing and recording of financing statements,  fixture filings, mortgages, deeds of trust and other documents and such other actions or  deliveries of the type required by Section 4.01, as applicable), which may be required by  law or which the Administrative Agent may, from time to time, reasonably request to carry  out  the  terms  and  conditions  of  this  Agreement  and the  other  Loan  Documents  and  to  ensure  perfection  and  priority  of  the  Liens  created  or  intended  to  be  created  by  the  Collateral Documents, all at the expense of the Loan Parties.          (e)   The  Borrower  Representative  will  promptly  notify  the  Administrative  Agent if any Borrower or any other Loan Party acquires any real or personal property with  a fair market value in excess of $25,000,000 (other than assets constituting Collateral under  the Security Agreements that are, as a result of actions previously taken, automatically  subject  to  a  valid,  perfected  first  priority  security  interest  or  mortgage  lien  (subject  to  Permitted Liens) in favor of the Administrative Agent (for the benefit of the Lender Parties)  upon acquisition thereof), and, if requested by the Administrative Agent or the Required  Lenders and subject to the terms and conditions of this Agreement, the Borrowers will  promptly  cause  such  assets  to  be  subjected  to  a  valid,  perfected  first  priority  security  interest or mortgage lien (subject to Permitted Liens) in favor of the Administrative Agent  (for the benefit of the Lender Parties) securing the applicable Secured Obligations and will  take, and cause, as reasonably practicable, the applicable Loan Parties to take, such actions  as shall be necessary or reasonably requested by the Administrative Agent to grant and  perfect  such  Liens,  all  at  the  expense  of  the  Loan Parties;  provided  that  it  is  hereby  acknowledged and agreed that, the Administrative Agent shall not request and such Loan                                   109                





 






         Party shall not deliver any Mortgage until the Lenders are reasonably satisfied with flood        insurance due diligence and flood insurance compliance.         SECTION 5.14.  Source of Repayments.  The funds used as the source of the Borrowers’  repayments to the Lenders shall not derive, directly or indirectly, from activities in violation of  any rule, regulation, order, or decree of any Governmental Authority, including those identified  specifically in Section 5.08, except, in each case (other than those specified in clauses (w) to (y)  of Section 5.08), where the foregoing, individually or in the aggregate, could not reasonably be  expected to have a Material Adverse Effect.         Post-Closing Covenants. (a) On or before 120 days after the Effective Date (or such longer  period as the Administrative Agent may agree in its sole discretion), the Administrative Agent  shall have received such duly executed amendments or assignments with respect to each Mortgage,  in form and substance acceptable to the Administrative Agent, as shall be reasonably necessary to  create  a  valid,  perfected  first  priority  security  interest  and  mortgage  lien  (subject  to  Permitted  Liens) in favor of the Collateral Agent in all of the Mortgaged Property.               (b)   On or before 120 days after the Effective Date (or such longer period as the         Administrative Agent may agree in its sole discretion), the Administrative Agent shall have         received (i) appraisals reasonably requested by the Administrative Agent and prepared by         appraisers acceptable to the Administrative Agent; and/or (ii) one or more reliance letters,         in form and substance satisfactory to the Administrative Agent, with respect to appraisals         of real estate and the improvements thereon reasonably requested by the Administrative         Agent.                (c)   On or before 120 days after the Effective Date (or such longer period as the         Administrative Agent may agree in its sole discretion), the Company shall have delivered         to the Administrative Agent, in form and substance acceptable to the Administrative Agent,         with  respect  to  each  Mortgage  and  the  properties  covered  thereby,  (i)  mortgagee  title         insurance policies, or date down and modification endorsements to existing policies, as the         case may be; and (ii) modifications thereto to reflect the new Maturity Date and such other         matters with respect to this Agreement as the Administrative Agent shall require.                (d)   On or before 90 days after the Effective Date (or such longer period as the         Administrative  Agent  may  agree  in  its  sole  discretion),  the  Company,  if  reasonably         requested by the Administrative Agent, shall have delivered to the Administrative Agent,         in  form  and  substance  acceptable  to  the  Administrative  Agent,  with  respect  to  each         Collateral Access Agreement and Deposit Account Control Agreement that is required to         be provided pursuant to the Security Agreement, an assignment of such Collateral Access         Agreement and Deposit Account Control Agreement, as applicable, to the Administrative         Agent (as successor-in-interest to Rabobank as collateral agent).                (e)   On or before 90 days after the Effective Date (or such longer period as the         Administrative  Agent  may  agree  in  its  sole  discretion),  the  Company,  if  reasonably         requested by the Administrative Agent, shall have delivered to the Administrative Agent,         in  form  and  substance  acceptable  to  the  Administrative  Agent,  an  assignment  or         amendment of each IP Security Agreement (as defined in the Security Agreement) that is                                        110    





 






         required to be provided pursuant to the Security Agreement, to evidence the Liens granted        thereby  in  favor  of  the  Administrative  Agent  (as  successor-in-interest  to  Rabobank  as        collateral agent).               (f)   On or before 45 days after the Effective Date (or such longer period as the        Administrative Agent may agree in its sole discretion), the Company shall have delivered        certificates  and  endorsements  to  the  liability  and property  insurance  policies  of  the        Company and its Subsidiaries naming the Administrative Agent (as successor-in-interest        to Rabobank as collateral agent) as lender’s loss payee or additional insured, as applicable,        in form and substance acceptable to the Administrative Agent.               (g)   Within  120  days  after  the  Effective  Date  (or  such  longer  period  as  the         Administrative  Agent  may  agree  in  its  sole  discretion),  the  Company,  if  reasonably         requested  by  the  Administrative  Agent,  shall  have  delivered  such  documentation         reasonably  requested  by  the  Administrative  Agent,  if  any,  to  evidence  each  of  the         mortgages and charges of the Administrative Agent (as successor-in-interest to Rabobank         as collateral agent) on record with the Bermuda Registrar of Companies.                  (h)   The Company shall pay all reasonable costs required to comply with this         Section 5.15.                                     ARTICLE VI                                                                       NEGATIVE COVENANTS          Until the Obligations have been Fully Satisfied, each Loan Party executing this Agreement   covenants and agrees with the Lender Parties that:          SECTION 6.01.  Indebtedness.   No  Loan  Party  will,  nor  will  it  permit  any  of  the  Subsidiaries to, create, incur or suffer to exist any Indebtedness, except:               (a)   the Secured Obligations;               (b)   Indebtedness  existing  on  the  Effective  Date  and  set  forth  in         Schedule 6.01(b) and refinancing, refundings, extensions, renewals and replacements of        any such Indebtedness in accordance with paragraph (f) hereof;               (c)   Indebtedness (other than Guarantees described in paragraph (d) below) of        any  Borrower  to  any  Subsidiary  and  of  any  Subsidiary  to  any  Borrower  or  any  other        Subsidiary; provided that (i) Indebtedness under this paragraph (c) shall not be permitted        unless the corresponding Investment is permitted under Section 6.04 and (ii) Indebtedness        of any Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the        Secured Obligations on terms reasonably satisfactory to the Administrative Agent;                (d)   Guarantees by any Borrower of Indebtedness of any Subsidiary and by any        Subsidiary of Indebtedness of any Borrower or any other Subsidiary; provided that (i) the        Indebtedness so Guaranteed is permitted by this Section 6.01; (ii) Guarantees under this        paragraph  (d)  shall  not  be  permitted  unless  the  corresponding  Investment  is  permitted                                        111    





 






               under  Section  6.04;  and  (iii)  Guarantees  permitted under  this  paragraph  (d)  shall  be  subordinated  to  the  Secured  Obligations  of  the  applicable  Subsidiary  on  terms  no  less  favorable to the Lenders as the Indebtedness so Guaranteed is subordinated to the Secured  Obligations (if any);         (e)   Indebtedness of any Borrower or any Subsidiary (i) incurred to finance the   lease, acquisition, construction or improvement of any fixed or capital assets (whether or   not  constituting  purchase  money  Indebtedness),  including  Capital  Lease  Obligations,   industrial revenue bonds, municipal bonds or similar bonds, Indebtedness in respect of sale   and leaseback transactions permitted under Section 6.06 and any Indebtedness assumed in  connection with the acquisition of any such assets or secured by a Lien on any such assets  prior to the acquisition thereof and (ii) refinancings, refundings, extensions, renewals and  replacements of any such Indebtedness in accordance with paragraph (f) hereof; provided  that in the case of paragraph (e)(i) above, (A) such Indebtedness is incurred prior to or  within  180  days  after  such  acquisition  or  the  completion  of  such  construction  or  improvement and (B) the aggregate principal amount of Indebtedness that may be incurred  in any Fiscal Year shall not exceed $100,000,000;         (f)   Indebtedness which represents a refinancing, refunding, extension, renewal  or replacement of any of the Indebtedness described in paragraphs (b), (e), (j), and (k),  hereof; provided that (i) the principal amount of such Indebtedness is not increased, except  by an amount equal to (x) any reasonable premium or similar amount paid, and fees and  expenses reasonably incurred, in connection with such refinancing, refunding, extension,  renewal or replacement, and (y) any then existing unutilized commitment to extend credit  to the relevant Loan Party or relevant Subsidiary thereof under any agreement governing  such Indebtedness (provided that this paragraph (f) shall not limit the principal amount of  such Indebtedness that may be increased to the extent such Indebtedness may be incurred  under any other provision of this Section 6.01 and so long as such Indebtedness is deemed  to have been incurred under such provision); (ii) any Liens securing such Indebtedness are  not extended to any additional property of any Loan Party (provided that assets that are  subject to or secure any Indebtedness of any  Loan Party or any Subsidiary constituting  Capital  Lease  Obligations  or  purchase  money  Indebtedness  permitted  under  Section  6.01(b), (e), or (k)  or operating leases may also secure any other Indebtedness of such  Loan  Party  or  Subsidiary  constituting  Capital  Lease  Obligations,  purchase  money  Indebtedness  or  operating  leases  to  the  extent  that  such  Indebtedness  is  advanced  or  otherwise extended by the same creditor or its Affiliates); (iii) no Loan Party that is not  originally obligated with respect to repayment of such Indebtedness is required to become  obligated  with  respect  thereto  (provided  that  this clause  (iii)  shall  not  limit  other  Loan  Parties becoming obligated with respect thereto to the extent such Indebtedness may be  incurred by such other Loan Parties under Section 6.01(c) or (d); (iv) such refinancing,  refunding, extension, renewal or replacement does not result in a shortening of the average  weighted  maturity  of  the  Indebtedness  so  refinanced,  refunded,  extended,  renewed  or  replaced  (provided  that  this  clause  (iv)  shall  not apply  to  any  such  Indebtedness  that  matures  prior  to  the  Maturity  Date);  (v)  the  terms of  any  such  refinancing,  refunding,  extension,  renewal  or  replacement  are  not  materially  less  favorable  to  the  obligor  thereunder (as determined by the Company in its commercially reasonable judgment) than  the original terms of such Indebtedness; and (vi) if the Indebtedness that is refinanced,                                  112                





 






               refunded,  extended,  renewed  or  replaced  was  subordinated  in  right  of  payment  to  the  Secured  Obligations,  then  the  terms  and  conditions of  the  refinancing,  refunding,  extension,  renewal  or  replacement  Indebtedness  must  include  subordination  terms  and  conditions that are at least as favorable to the Administrative Agent and the Lenders as  those that were applicable to the refinanced, renewed or extended Indebtedness;          (g)   (i)  Indebtedness  owed  to  any  Person  providing  workers’  compensation,  unemployment  insurance,  health,  disability  or  other  employee  benefits  or  other  social  security legislation or property, casualty or liability insurance, pursuant to reimbursement  or indemnification obligations to such Person, and (ii) letters of credit, bank guarantees or  similar instruments for the benefit of Persons under clause (i) of this paragraph (g) in each  case incurred in the ordinary course of business by any Captive Insurance Company;         (h)   Indebtedness  (other  than  Indebtedness  for  borrowed money)  of  any  Borrower or any Subsidiary in respect of bids, trade contracts, leases, statutory obligations,  performance  bonds,  bid  bonds,  appeal  bonds,  surety bonds,  customs  bonds  and  similar  obligations (or, in the case of Captive Insurance Companies, in respect of letters of credit,  bank  guarantees  or  similar  obligations  related  thereto),  in  each  case  provided  in  the  ordinary course of business;         (i)   Indebtedness of (i) PPC Mexico and its Mexican Subsidiaries in respect of  the Mexican Credit Facility in an aggregate principal amount not to exceed the greater of  $100,000,000  or  MXN$1,500,000,000  at  any  time  outstanding  and  (ii)  the  Moy  Park  Entities in the aggregate principal amount not to exceed the greater of $225,000,000 or  £150,000,000 at any time outstanding;         (j)   Indebtedness  in  respect  of  the  Intercompany  IRBs  (provided  that,  to  the  extent that any Subsidiary that is not a Loan Party is obligated under any Intercompany  IRBs to any Loan Party, such Indebtedness of such Subsidiary shall not be permitted under  this paragraph unless such Intercompany IRB is existing on the Effective Date and set forth  on Schedule 6.01(b) or the corresponding Investment is permitted under Section 6.04);         (k)    (i) Indebtedness of any Person that becomes a Subsidiary after the Effective  Date  in  connection  with  an  Investment  permitted  by Section  6.04(h),  (k),  (q)  or  (s)  (provided that such Indebtedness exists at the time such Person becomes a Subsidiary and  is  not  created  in  contemplation  of  or  in  connection  with  such  Person  becoming  a  Subsidiary) and (ii) Indebtedness owed to any seller of property acquired in connection  with an Investment permitted by Section 6.04(k), (q) or (t); provided that both before and  after giving effect to Indebtedness pursuant to this paragraph (k), on a Pro Forma Basis (x)  no Default or Event of Default shall exist or result therefrom and (y) the Borrowers shall  be in compliance with the covenant set forth in Section 6.13 for the Test Period ending  immediately prior to the incurrence of such Indebtedness for which financial statements  have been delivered pursuant to Section 5.01(a) or (b);         (l)   Indebtedness pursuant to clause (a)(ii) of the definition thereof in respect of  customer deposits and advance payments received in the ordinary course of business from  customers for goods purchased in the ordinary course of business;                                  113                





 






                     (m)   Indebtedness owed in respect of any overdrafts and related liabilities arising  from  treasury,  depository  and  cash  management  services  or  in  connection  with  any  automated clearinghouse transfers of funds;         (n)   Indebtedness arising from agreements of the Company or the Subsidiaries   providing for indemnification, adjustment of acquisition price or similar obligations, in   each case, to the extent such obligations are incurred or assumed in connection with the   acquisition or disposition of any business or assets by the Company or the Subsidiaries   permitted by Section 6.04 or Section 6.05;         (o)   Indebtedness supported by a Letter of Credit, in a principal amount not in  excess of the stated amount of such Letter of Credit;         (p)   Indebtedness consisting of the financing of insurance premiums (other than  to the Captive  Insurance Company or other Affiliates of the Company) in the ordinary  course of business;         (q)   Indebtedness pursuant to paragraph (d) of the definition thereof consisting  of  take-or-pay  obligations  contained  in  supply  arrangements  in  the  ordinary  course  of  business and consistent with historical practice;         (r)   Indebtedness pursuant to paragraph (d) of the definition thereof incurred by  the  Company  and  the  Subsidiaries  representing  deferred  compensation  to  officers  and  employees of such Person in the ordinary course of business;         (s)   Indebtedness  arising  out  of  the  endorsement  for  deposit  or  collection  of  items received in the ordinary course of business;         (t)   other (i) unsecured Indebtedness (including the aggregate principal amount   of  the  2015  Senior  Notes  and  2017  Senior  Notes  and any  Permitted  Subordinated   Indebtedness at any time outstanding) in an aggregate principal amount not to exceed at   any time outstanding the result of (A) $4,000,000,000 minus (B) the principal amount of   all secured Indebtedness then outstanding (including pursuant to Section 6.01(a), (b), (e),  and (t)(ii) but excluding pursuant to Section 6.01(i)), and (ii) secured Indebtedness in an  aggregate amount not to exceed $50,000,000 at any time outstanding, provided that (X) no  principal  payment  or  prepayment  shall  be  made  under  such  Indebtedness  prior  to  six  months following the latest Maturity Date in effect on the date of the incurrence of such  Indebtedness (other than (1) in the case of unsecured Indebtedness permitted by clause (i)  above,  (I)  in  connection  with  a  refinancing  of  such  Indebtedness  with  new  unsecured  Indebtedness permitted by clause (t)(i) to the extent such proceeds are not required to repay  the Loans pursuant to Section 2.12(c) or (II) with the proceeds of the issuance of any Equity  Interests of the Company, and (2) in the case of secured Indebtedness permitted by clause  (ii) above, in connection with a refinancing of such Indebtedness permitted by clause (t)(ii)  and Section 6.02), unless in each case, both concurrently with and after giving effect to  such  payment  under  such  Indebtedness,  there  are  no Loans  outstanding,  (Y)  the  stated  maturity date of such Indebtedness shall not be earlier than six months following the latest  Maturity Date in effect on the date of the incurrence of such Indebtedness; and (Z) no such                                   114                





 






         Indebtedness may be created or incurred unless both before and after giving effect to such        Indebtedness, on a Pro Forma Basis (1) no Default or Event of Default shall exist or result        therefrom, and (2) the Borrowers shall be in compliance with the covenant set forth in        Section  6.13  for  the  Test  Period  for  which  financial  statements  have  been  delivered        pursuant  to  Section  5.01(a)  or  (b)  ending  immediately  prior  to  the  incurrence  of  such        Indebtedness;               (u)   Indebtedness consisting of promissory notes issued by any Loan Party to        future, present or former directors, officers or employees of the Company or any of the        Subsidiaries or their respective estates, heirs, family members, spouses or former spouses        to  finance  Restricted  Payments  in  the  form  of  the  purchase  or  redemption  of  Equity        Interests  of  the  Company  to  the  extent  such  Restricted  Payments  are  permitted  by        Section 6.08(a)(iii), (iv) and (viii) at the time of the incurrence of such Indebtedness;               (v)   Indebtedness arising under Swap Agreements permitted by Section 6.07;                (w)   Indebtedness  arising  under  Qualified  Securitization  Financings  in  an        aggregate outstanding amount not to exceed $150,000,000; and               (x)   the extent any of the following constitute Indebtedness:  all premiums (if        any) interest, fees, expenses, charges and additional or contingent interest (other than paid        in kind interest) paid with respect to Indebtedness described in paragraphs (a) through (w)        above.         SECTION 6.02.  Liens.  No Loan Party will, nor will it permit any of the Subsidiaries to,  create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter  acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights  in respect of any thereof, except:               (a)   Liens created pursuant to any Loan Document;               (b)   Permitted Encumbrances;               (c)   any  Lien  on  any  property  or  asset  of  any  Borrower  or  any  Subsidiary        existing on the Effective Date and set forth in Schedule 6.02(c); provided that (i) such Lien        shall not apply to any other property or asset of such Borrower or Subsidiary, other than as        permitted under Section 6.01(f)(ii); and (ii) such Lien shall secure only the Indebtedness        which it secures on the Effective Date and refinancings, refundings, extensions, renewals        and  replacements  thereof  that  are  permitted  by  Section  6.01  (or,  solely  with  respect  to        obligations that are not Indebtedness, any refinancings, refundings, extensions, renewals        and  replacements  thereof  that  are  not  prohibited  by  Section  6.01,  so  long  as  such        obligations are not amended or otherwise modified in contravention of this Agreement);                (d)   Liens on fixed or capital assets acquired, constructed or improved by any        Borrower  or  any  Subsidiary;  provided  that  (i)  such security  interests  only  secure        Indebtedness permitted by Section 6.01(e), (f), (k) or (t)(ii); (ii) such security interests and        the  Indebtedness  secured  thereby  are  incurred  prior  to  or  within  180  days  after  such        acquisition or the completion of such construction or improvement; (iii) the Indebtedness                                        115    





 






               secured thereby does not exceed the cost of acquiring, constructing or improving such fixed  or  capital  assets  and  any  reasonable  expenses  in  connection  therewith;  and  (iv)  such  security  interests  shall  not  apply  to  any  other  property  or  assets  of  such  Borrower  or  Subsidiary  or  any  other  Borrower  or  Subsidiary,  other  than  as  permitted  under  Section 6.01(f)(ii);         (e)   any Lien existing on any property or asset prior to the acquisition thereof  by any Borrower or any Subsidiary or existing on any property or asset of any Person that  becomes a Subsidiary after the Effective Date prior to the time such Person becomes a  Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection  with such acquisition or such Person becoming a Subsidiary, as the case may be; (ii) such  Lien shall not apply to any other property or assets of such Borrower or Subsidiary or any  other Borrower or Subsidiary, other than as permitted under Section 6.01(f)(ii); (iii) such  Lien  shall  not  apply  to  any  Accounts  and  Inventory of  any  Loan  Party,  including  any  Subsidiary which becomes a Loan Party (or is required to become a Loan Party under terms  of the Loan Documents) and (iv) such Lien shall secure only the Indebtedness which it  secures on the date of such acquisition or the date such Person becomes a Subsidiary, as  the case may be, and such Indebtedness is permitted with respect to such Subsidiary under  Section  6.01(k),  together  with  refinancings,  refundings,  extensions,  renewals  and  replacements  thereof  that  are  permitted  by  Section 6.01  (or,  solely  with  respect  to  obligations that are not Indebtedness, any refinancings, refundings, extensions, renewals  and  replacements  thereof  that  are  not  prohibited  by  Section  6.01,  so  long  as  such  obligations are not amended or otherwise modified in contravention of this Agreement);          (f)   Liens of a collecting bank arising in the ordinary course of business under  Section  4-208  of  the  Uniform  Commercial  Code  in  effect  in  the  relevant  jurisdiction  covering only the items being collected upon;         (g)   Liens created under PSA, PACA or other similar Requirements of Law;         (h)   Liens  arising  out  of  sale  and  leaseback  transactions  permitted  by  Section 6.06;         (i)   Liens solely on the assets of the Foreign Subsidiaries and Equity Interests  issued  by  the  Foreign  Subsidiaries,  in  each  case  that  secure  outstanding  Indebtedness  permitted by Section 6.01(i); and         (j)   Liens  granted  by  any  Subsidiary  to  secure  obligations  permitted  under  Section 6.01(j), provided that if such Liens are on any property of a U.S. Loan Party, such  Liens are in favor of a U.S. Loan Party, and if such Liens are on property of a Bermuda  Loan Party, such Liens are in favor of a Bermuda Loan Party, in the case of this proviso,  only to the extent such Liens are collaterally assigned to the Administrative Agent pursuant  to terms and conditions acceptable to the Administrative Agent;          (k)   Liens on the Equity Interests of any non-wholly owned Subsidiary of any  Loan Party or Liens on the Equity Interests of any other Investment, in each case to secure  put  or  call  obligations  or  similar  obligations,  and  any  other  put  or  call  or  similar                                   116                





 






               arrangements related to the Equity Interests issued by such non-wholly owned Subsidiary  or  such  other  Investment  set  forth  in  its  organizational  documents  or  any  related  joint  venture or similar agreement;         (l)   Liens  (i)  consisting  of  customary  rights  and  restrictions  contained  in   agreements  relating  to  any  disposition  of  assets  in  a  transaction  permitted  under   Section 6.05 pending the completion thereof, (ii) on assets subject to escrow or similar  arrangements that secure indemnification obligations arising under agreements relating to  any  a transaction permitted under Section 6.05  (g) or  (h),  and (iii) on Receivables and  Related Assets sold in a Permitted Customer Factor Program;         (m)   Liens  of  any  Governmental  Authority  arising  under  any  Requirement  of  Law in any Inventory of the Company or the Subsidiary that is subject to any procurement  contract with such Governmental Authority;         (n)   Liens consisting of precautionary filings of financing statements under the  UCC which cover property that is made available to or used by the Loan Parties or any of  the Subsidiaries pursuant to the terms of any operating lease or consignment of goods;         (o)   Liens consisting of rights reserved by or vested in any Person by the terms  of  any  lease,  license,  franchise,  grant  or  permit  held  by  the  Company  or  any  of  the  Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise,  grant or permit;         (p)   Liens  encumbering  reasonable  customary  initial  deposits  and  margin  deposits attaching to commodity trading accounts or other commodity brokerage accounts  in favor of the relevant commodity broker incurred in the ordinary course of business and  not for speculative purposes and margin loans made by such commodity broker; provided  that such accounts shall be subject to a control (or similar) agreement among the applicable  Loan Party, the applicable commodity counterparty and the Administrative Agent, which  agreement shall be reasonably satisfactory to the Administrative Agent;          (q)   Liens  that  are  incurred  in  the  ordinary  course  of  business  consisting  of  pledges or deposits to secure liability for reimbursement or indemnification obligations of  insurance  carriers  providing  or  administering  insurance  for  the  Company  and  the  Subsidiaries (or, in the case of any Captive Insurance Company, to secure letters of credit,  bank guarantees or similar obligations related thereto);         (r)   Liens that are incurred in the ordinary course of business on the proceeds of  insurance policies to secure the financing of insurance premiums thereunder;         (s)   Liens on the property of any Foreign Subsidiary (other than a Loan Party)  of  the  Company  (and  Equity  Interests  issued  by  such  Foreign  Subsidiary,  unless  such  Equity Interests (or any percentage thereof) are (or are required to be) pledged under the  Loan Documents) securing  Indebtedness of such Foreign Subsidiary to the extent such  Indebtedness is permitted under Section 6.01(f), (k) or (t)(ii);                                   117                





 






               (t)   Liens that are incurred in the ordinary course of business consisting of cash        deposits or deposits of Permitted Investments in favor of the seller, lessor or sublessor of        any  property  in  connection  with  a  transaction  not  otherwise  prohibited  under  this        Agreement;               (u)   Liens  arising  out  of  any  conditional  sale,  title  retention  or  similar        arrangement  for  the  purchase  or  sale  of  goods  entered  into  in  the  ordinary  course  of        business and otherwise not prohibited by the terms of this Agreement;               (v)   Liens that are incurred in the ordinary course of business deemed to exist in        connection  with  repurchase  agreements  described  in paragraphs  (d)  and  (g)  of  the        definition of “Permitted Investments”;               (w)   Liens on feed ingredients granted in the ordinary course of business to the        sellers of such feed ingredients to secure the unpaid purchase price thereof;               (x)   Liens  on  cash  and/or  Permitted  Investments  securing  obligations  under         Swap Agreements in favor of the applicable counterparty if (i) such Swap Agreement is         permitted under Section 6.07(b) and (ii) the applicable Loan Party’s rights under such Swap        Agreement  are  subject  to  a  valid,  perfected  first  priority  security  interest  (subject  to        Permitted  Liens)  in  favor  of  the  Administrative  Agent  (for  the  benefit  of  the  Lender        Parties), which security interest is acknowledged, on terms reasonably satisfactory to the        Administrative Agent, by the applicable counterparty to such Swap Agreement;                (y)   Liens on the Equity Interests of any Farm Credit System Institution required        to be purchased from time to time by the Borrowers in favor of such Farm Credit System        Institution;               (z)   Liens  on  accounts  receivable,  Securitization  Assets  and  related  assets        incurred in connection with a Qualified Securitization Facility; and               (aa)  other  Liens  securing  Indebtedness  and  other  obligations  permitted  under        this Agreement, which Indebtedness and other obligations shall not exceed $50,000,000 in        the aggregate at any time outstanding, on assets that are not subject to a security interest in        favor  of  the  Administrative  Agent  (for  the  benefit of  the  Lender  Parties)  unless  the        Indebtedness that is being secured constitutes Capital Lease Obligations or purchase money        Indebtedness.         Notwithstanding the foregoing, none of the Permitted Liens may at any time attach to any  Loan  Party’s  (A)  Accounts,  other  than  those  permitted  under  paragraphs  (a)  and  (e)  of  the  definition  of  “Permitted  Encumbrances”  and  paragraphs  (a),  (e),  (g)  and  (l)  above  and  (B) Inventory, other than those permitted under paragraphs (a), (b), (e), (g) and (i) of the definition  of “Permitted Encumbrances” and paragraphs (a), (e), (g), (l), (m) and (w) above.         SECTION 6.03.  Fundamental Changes; Change in Nature of Business.  No Loan Party  will, nor will it permit any of the Subsidiaries to, merge into or consolidate with any other Person;  permit any other Person to merge into or consolidate with it; transfer all or substantially all of its  assets to another Person; or liquidate or dissolve, or change the type of entity it is, or the jurisdiction                                        118    





 






   of its organization; provided that if, at the time thereof and immediately after giving effect thereto,  no Default or Event of Default (including under paragraph (n) of Article VII) shall have occurred  and be continuing:               (a)   any Loan Party or any of the Subsidiaries may merge into, consolidate with,         or dissolve or liquidate into, and may transfer all or substantially all of its assets to, any         other Loan Party or any of the Subsidiaries; provided that:                     (i)   in any such transaction involving the Company, the Company shall              be either the surviving entity or the acquirer of such assets, as the case may be, and              (2)  in  any  such  transaction  involving  any  Bermuda  Borrower,  such  Bermuda              Borrower or the Company shall be either the surviving entity or the acquirer of such              assets, as the case may be;                     (ii)  in any such transaction involving a U.S. Loan Party, a U.S. Loan              Party shall be either the surviving entity or the acquirer of such assets, as the case              may  be,  and  (2)  in  any  such  transaction  involving  any  Bermuda  Loan  Party,  a              Bermuda Loan Party or a U.S. Loan Party shall be either the surviving entity or the              acquirer of such assets, as the case may be; and                     (iii)  any such merger or consolidation involving a Person that is not a              wholly owned Subsidiary immediately prior to such merger or consolidation shall              not be permitted unless also permitted by Section 6.04(c), (k), (q) or (t);                     (iv)  with  respect  to  liquidations  and  dissolutions,  the Company  shall              have  reasonably  determined  in  good  faith  and  in  the  exercise  of  its  reasonable              business judgment that such liquidation or dissolution is in the best interests of such              Person and is not materially disadvantageous to the Lenders (provided that, without              limiting the foregoing, under no circumstances shall the Company be permitted to              liquidate or dissolve); and                     (v)   in no event shall any Subsidiary, the Equity Interests of which are              Collateral (a “Pledged Subsidiary”), merge into or consolidate with any Subsidiary              other  than  another  Pledged  Subsidiary  unless  after giving  effect  thereto,  the              Administrative Agent shall have a perfected pledge of, and security interest in and              to, at least the same percentage of the issued and outstanding interests of Equity              Interests (on a fully diluted basis) of the surviving Person as the Administrative              Agent  had  immediately  prior  to  such  merger  or  consolidation,  in  form  and              substance  reasonably  satisfactory  to  the  Administrative  Agent,  pursuant  to  such              documentation  (including  related  legal  opinions)  as  shall  be  necessary  in  the              reasonable opinion of the Administrative Agent to create, perfect or maintain the              collateral position of the Administrative Agent therein;                      (vi)  the Loan Parties and the Subsidiaries may merge into or consolidate              with any other Person in order to effect a Permitted Acquisition; provided that:                                          119    





 






                           (A)   (1)  in  any  such  transaction  involving  the  Company, the        Company  shall  be  the  surviving  entity  and  (2)  in  any  such  transaction        involving any Bermuda Borrower, such Bermuda Borrower or the Company        shall be the surviving entity; and               (B)   in any such transaction involving any Loan Party (other than        a Borrower, such non-Borrower Loan Party, a “Subject Loan Party”), either        (1) such Subject Loan Party shall be the surviving entity or (2) if the Person        formed by or surviving any such merger or consolidation is not such Subject        Loan  Party  (any  such  Person,  the  “Successor  Company”),  all  of  the        following conditions shall be satisfied on or prior to the consummation of        such transaction:  (aa) the Successor Company shall be a Person organized        under the laws of a state of the United States if such Subject Loan Party was        a U.S. Loan Party or a Person organized under the laws of Bermuda or a        state of the United States if such Loan Party was a Bermuda Loan Party,        (bb) the Successor Company shall expressly assume all the obligations of        such  Subject  Loan  Party  under  this  Agreement  and  the  other  Loan        Documents to which such Subject Loan Party is a party immediately prior        to  such  transaction  pursuant  to  a  supplement  hereto  or  thereto  in  form        reasonably  satisfactory  to  the  Administrative  Agent,  (cc)  each  Loan        Guarantor shall have confirmed on terms satisfactory to the Administrative        Agent  that  its  Loan  Guaranty  shall  apply  to  the  Successor  Company’s        obligations under this Agreement and the other Loan Documents, (dd) each        Loan Party shall have confirmed on terms satisfactory to the Administrative        Agent that its obligations under the Collateral Documents shall secure the        Successor Company’s obligations under this Agreement and the other Loan        Documents,  (ee)  such  transaction  shall  not  adversely  affect  the  validity,        perfection or priority of the Administrative Agent’s security interest in the        Collateral,  (ff)  the  Administrative  Agent  shall  have  received  such  other        confirmations, instruments and documents as it may reasonably request in        connection with such merger or consolidation and (gg) the Company shall        have delivered to the Administrative Agent an officer’s certificate and an        opinion of counsel, each stating that such merger or consolidation and such        confirmations,  instruments  and  documents  delivered in  respect  of  this        Agreement  comply  with  this  Agreement,  the  foregoing  to  be  reasonably        satisfactory to the Administrative Agent.  If all of the foregoing conditions        are  satisfied  on  or  prior  to  the  consummation  of  such  transaction,  the        Successor  Company  will  succeed  to,  and  be  substituted  for,  the  relevant        Loan Party under this Agreement and the other Loan Documents;         (vii)  the Company and any of the Bermuda Borrowers may merge into or  consolidate  with  any  newly  formed  Subsidiary,  the  sole  purpose  of  which  is  to  change the jurisdiction of organization of such Borrower (a “Redomestication”),  but only if (A) the conditions set forth in Section 6.03(a)(iv)(B)(2)(bb) through (gg)  are satisfied on or prior the consummation of such transaction (it being agreed that  the relevant Borrower would be deemed the Subject Loan Party for determining  whether  such  conditions  have  been  satisfied),  (B)  such  transaction  could  not                            120                





 






               reasonably be expected to result in (1) material adverse tax consequences to the              Administrative  Agent  or  the  Lenders,  as  determined in  their  sole  and  absolute              discretion,  or  (2)  a  Material  Adverse  Effect,  (C)  with  respect  to  any              Redomestication of the Company, the jurisdiction of organization of the Company              after such Redomestication is one of the states of the United States, (D) with respect              to any Redomestication of any other Borrower, the jurisdiction of organization of              such  Borrower  after  such  Redomestication  be  satisfactory  to  the  Administrative              Agent  in  its  sole  and  absolute  discretion  and  (E)  such  transaction  is  otherwise              consummated in accordance with the Security Agreements.  If all of the foregoing              conditions are satisfied on or prior to the consummation of such Redomestication,              the entity surviving such Redomestication will succeed to, and be substituted for,              the relevant Borrower under this Agreement and the other Loan Documents;                      (viii)  subject to Section 6.03(a)(vii) above, any Loan Party and any of the              Subsidiaries may change its type of organization or its jurisdiction of organization              in accordance with the Security Agreements;                     (ix)  the Company may dispose of any Subsidiary of the Borrowers (other              than  the  Bermuda  Borrowers)  (including  by  means  of a  merger,  dissolution,              liquidation, consolidation or winding up of all or substantially all of its assets), to              the extent permitted pursuant to 6.05(a)(ii), (g), (h) and (m); and                     (x)   the  Company  may  dispose  of  the  Bermuda  Borrowers  (and  the              Bermuda Borrowers may dispose of all or substantially all of their assets), so long              as (A) substantially simultaneously with the consummation of such transaction, the              Bermuda  Secured  Obligations  are  Fully  Satisfied  and  the  Loan  Documents  are              amended in a manner satisfactory to the Administrative Agent to reflect that the              Bermuda  Borrowers  are  no  longer  Borrowers  or  Loan  Parties  and  (B)  such              transaction is permitted under Section 6.05(g).               (b)   No Loan Party will, nor will it permit any of the Subsidiaries to, engage in        any  business  in  any  material  respect  other  than  the  poultry  industry  and  businesses        substantially  similar,  related  or  incidental  thereto  (including,  without  limitation,        processing,  packaging,  distribution  and  wholesales of  poultry  and  related  or  similar        products).         SECTION 6.04.  Investments,  Loans, Advances, Guarantees and Acquisitions.  No Loan  Party will, nor will it permit any of the Subsidiaries to, acquire, hold, make or permit to exist any  Investment, except:               (a)   (i)  Permitted  Investments  and  (ii)  Investments  which  were  Permitted        Investments when made but that no longer constitute Permitted Investments, solely to the        extent such Permitted Investments under this clause (ii), cannot be divested without the        Loan Parties and the Subsidiaries incurring material monetary penalties or losses;               (b)   Investments (other than loans and advances to Subsidiaries) in existence, or        committed to be made, on the Effective Date and described in Schedule 6.04(b), and any                                         121    





 






               renewal  or  extension  thereof;  provided  that  no  such  renewal  or  extension  thereof  shall  increase the amount of such Investment except by an amount otherwise permitted by this  Section  6.04  or  change  the  fundamental  nature  of  such  Investment  in  a  manner  not  otherwise permitted under this Section 6.04 (provided that if any other provision of this  Section 6.04 is utilized for the foregoing purposes the related Investment shall be deemed  to have been acquired, held, made or permitted to exist under such provision to the extent  of such utilization);         (c)   Investments among the Borrowers and the Subsidiaries; provided that any  Investment of any Loan Party in any Subsidiary that is not a Loan Party shall not in the  aggregate  exceed  the  amount  of  $400,000,000  at  any time  outstanding  for  all  such  Investments made after the Effective Date;          (d)   Guarantees  of  the  Company  in  respect  of  Indebtedness  permitted  to  be  incurred pursuant to Section 6.01(i);         (e)   loans  or  advances  made  by  the  Company  or  the  Subsidiaries  to  its  employees  and  officers  (and,  solely  with  respect  to  travel  and  entertainment  expenses,  directors)  in  the  ordinary  course  of  business  for  travel  and  entertainment  expenses,  relocation costs, housing-related expenses, expenses associated with the procurement or  sale of personal residences of key employees and officers and similar purposes up to a  maximum of $5,000,000 in the aggregate at any one time outstanding, and advances of  payroll payments and expenses made by the Company or the Subsidiaries to employees  and officers to be treated as expenses for accounting purposes and that are made in the  ordinary course of business and consistent with historical practice;         (f)   (i)  Accounts  and  other  trade  credit  extended  in  the  ordinary  course  of  business, (ii) notes, or stock or other securities issued by Account Debtors to a Loan Party  pursuant to negotiated agreements with respect to settlement of such Account Debtor’s  Accounts in the ordinary course of business and (iii) Investments received in the ordinary  course of business in connection with the bankruptcy or reorganization of, or settlement of  disputes  with,  or  judgments  against,  or  foreclosure  or  deed  in  lieu  of  foreclosure  with  respect to, customers and suppliers;         (g)   Investments in the form of and arising out of Swap Agreements permitted  by Section 6.07;         (h)   Investments  of  any  Person  existing  at  the  time  such  Person  becomes  a  Subsidiary  of  a  Borrower  or  consolidates  or  merges with  a  Borrower  or  any  of  the  Subsidiaries  (including  in  connection  with  a  Permitted  Acquisition)  so  long  as  such  Investments were not made in contemplation of such Person becoming a Subsidiary or of  such  merger,  and  any  renewal  or  extension  thereof  provided  that  no  such  renewal  or  extension  thereof  shall  increase  the  amount  of  such  Investment  except  by  an  amount  otherwise  permitted  by  this  Section  6.04  or  change the  fundamental  nature  of  such  Investment in a manner not otherwise permitted under this Section 6.04 (provided that if  any other provision of this Section 6.04 is utilized for the foregoing purposes the related                                   122                





 






               Investment shall be deemed to have been acquired, held, made or permitted to exist under  such provision to the extent of such utilization);         (i)   Investments  received  in  connection  with  the  dispositions  of  assets  in  accordance with Section 6.05;         (j)   Investments constituting deposits of cash and Permitted Investments to the  extent such deposits are otherwise permitted under Section 6.02;         (k)   Permitted  Acquisitions  not  otherwise  permitted  by  this  Section  6.04;  provided that both immediately before and after giving effect to the consummation of each  such  Permitted  Acquisition,  on  a  Pro  Forma  Basis,  (i)  Availability  is  not  less  than  the  greater of $250,000,000 or 30% of the Revolving Commitment and (ii) no Default or Event  of Default shall have occurred and be continuing;         (l)   Investments constituting loans and advances to contract growers (i) in an   aggregate  amount  not  to  exceed  $100,000,000  at  any time  outstanding  and  (ii)  for   reasonable expenses, in each case as incurred in the ordinary course of business;          (m)   Investments  made  by  any  Captive  Insurance  Company  permitted  by  the   investment policies of such Captive Insurance Company which investment policies are set   forth on Schedule 6.04(m), and all amendments, supplements and all other modifications  thereto which are reasonably satisfactory to the Administrative Agent;          (n)   Guarantees by the Company or any of the Subsidiaries that are consolidated  with the Company on the Company’s financial statements of leases (other than Capital  Lease  Obligations),  accounts  payable  and  accrued  expenses  of  the  Company  and  the  Subsidiaries that do not constitute Indebtedness, in each case, entered into in the ordinary  course of business;         (o)   Investments consisting of (i) Intercompany IRBs and Guarantees in respect  thereof,  to  the  extent  the  incurrence  (or  the  existence)  of  such  Intercompany  IRBs  or  Guarantees, as applicable, is permitted under paragraph (j) of Section 6.01, (ii) mergers  and consolidations, purchases of all or substantially all assets of a Person and assumption  of assets pursuant to a dissolution or liquidation of any Subsidiary, in each case to the  extent such mergers, consolidations and purchase or assumption of such assets, as the case  may be, are consummated pursuant to Section 6.03, (iii) any Restricted Payment to the  extent made pursuant to Section 6.08 (other than paragraph (a)(v) thereof) and (iv) solely  to  the  extent  constituting  an  Investment,  dispositions  of  assets  contemplated  in  Section 6.09(c)(v) (other than clause (A)(2) thereof);         (p)   Investments in or relating to a Securitization Subsidiary that, in the good   faith determination of the Company,  are necessary or advisable to effect any Qualified   Securitization Facility (including distributions or payments of Securitization Fees) or any   repurchase  obligation  in  connection  therewith  (including  the  contribution  or  lending  of   cash equivalents to Subsidiaries to finance the purchase of such assets from the Company   or any Subsidiary or to otherwise fund required reserves);                                   123                





 






               (q)   other Investments at any time outstanding in an aggregate amount not to         exceed 10% of Consolidated Tangible Net Worth (which, for the purposes of this clause (q)        shall be measured at the time such Investment is made);                (r)   Investment in any Subsidiary that is a Captive Insurance Company in an        amount  not  to  exceed  the  sum  of  (i)  the  amounts  needed  by  such  Captive  Insurance        Company to maintain regulatory capital requirements plus  (ii) such other amounts that are        reasonably needed in order to insure the risks of the Borrowers and the Subsidiaries that        such Captive Insurance Company is insuring;               (s)   Investments in the Equity Interests of any Farm Credit System Institution        that are required to be made pursuant to the governing documents of such Farm Credit        System Institution in order for such Farm Credit System Institution to be a Lender; and               (t)   other  Investments  in  an  aggregate  amount  not  to  exceed  the  amount        available under the Additional Equity Interest Basket;         provided that no Investment shall be permitted under this Section 6.04 if prohibited under  Section 6.03.  For purposes of this Section, the aggregate amount of an Investment at any time  shall be deemed to be equal to (i) the aggregate amount of cash, together with the aggregate fair  market value of property, loaned, advanced, contributed, transferred, or otherwise invested that  gives rise to such Investment minus (ii) the aggregate amount of distributions or other repayments  received in cash in respect of such Investment.  The amount of an Investment shall not in any event  be reduced by reason of any write off of such Investment nor increased by any increase in the  amount of earnings retained in the Person in which such Investment is made or by any increase in  the value of such Investment.         SECTION 6.05.  Asset  Sales.   No  Loan  Party  will,  nor  will  it  permit  any  of  the  Subsidiaries to, sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest  of any Subsidiary of the Company owned by it, nor will any Borrower permit any Subsidiary to  issue any additional Equity Interest in such Subsidiary, except:               (a)   sales,  transfers  and  dispositions  (other  than  to  any  Borrower  or  any        Subsidiary) of (i) inventory in the ordinary course of business; and (ii) used, obsolete, worn        out or surplus equipment or property in the ordinary course of business;               (b)   sales,  transfers  and  dispositions  to  any  Borrower  or  any  Subsidiary;         provided  that  (i)  if  any  such  sales,  transfers  or  dispositions  are  in  the  form  of  any        Investment,  such  sales,  transfers  or  dispositions  shall  be  made  in  compliance  with        Section  6.04(c),  (o),  (q)  or  (t)  and  (ii)  any  such sales,  transfers  or  dispositions  to  a        Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09;               (c)   sales,  transfers  and  dispositions  of  (i)  accounts  receivable  or  note        receivables  in  connection  with  the  compromise,  settlement  or  collection  thereof  and        (ii)  Investments  received  in  connection  with  the  bankruptcy  or  reorganization  of,  or        settlement  of  disputes  with,  or  judgments  against, or  foreclosure  or  deed  in  lieu  of        foreclosure with respect to, customers and suppliers of the Borrowers or the Subsidiaries;                                         124    





 






                     (d)   sales, transfers and dispositions of (i) cash and Permitted Investments and   other investments permitted by each of Section 6.04(a)(ii), (e), (f)(ii), (f)(iii), (m) or (r), (ii)  Investments described in items 2 through 7 of Schedule 6.04(b) and (iii) Investments which  were  Permitted  Investments  when  made,  but  that  no  longer  constitute  Permitted  Investments, provided that any such Investment is sold, transferred and disposed as soon  as reasonably practicable after the date the Company learns that such Investment no longer  constitutes Permitted Investments;         (e)   sale and leaseback transactions permitted by Section 6.06;         (f)   dispositions resulting from any casualty or other insured damage to, or any  taking under power of eminent domain or by condemnation or similar proceeding of, any  property or asset of any Borrower or any Subsidiary;          (g)   sales, transfers and other dispositions of assets (other than Equity Interests  in a wholly-owned Subsidiary, unless all Equity Interests in such Subsidiary are sold) that  are not permitted by any other paragraph of this Section; provided that (i) the aggregate  fair market value of all assets sold, transferred or otherwise disposed of in reliance upon  this paragraph (g) shall not exceed $100,000,000 during any Fiscal Year and (ii) at the time  of and immediately after giving effect to any such sale, transfer or other disposition or a  commitment of any Borrower or Subsidiary with respect thereto, whichever comes first,  on  a  Pro  Forma  Basis,  (A)  no  Default  or  Event  of  Default  shall  have  occurred  and  be  continuing and (B) if such sale, transfer or other disposition is of an operating facility, line  of business or Subsidiary the Borrowers shall be in compliance with the covenant set forth  in Section 6.13 (for the Test Period ending immediately preceding such sale, transfer or  other disposition for which financial statements have been delivered pursuant to Section  5.01(a) or (b));         (h)   sales, transfers, leases or other dispositions by the Company or any of its  Subsidiaries of assets that were acquired in connection with a Permitted Acquisition (other  than  Equity  Interests  in  a  wholly-owned  Subsidiary,  unless  all  Equity  Interests  in  such  Subsidiary are sold); provided that any such sale, transfer, lease or other disposition shall  be made or contractually committed to be made within 270 days of the date such assets  were acquired by the Company or such Subsidiary;         (i)   licensing  and  cross-licensing  arrangements  involving  any  intellectual  property of the Company or any of the Subsidiaries in the ordinary course of business;         (j)   sales, transfers, leases, and other dispositions of property that is exchanged,   or  the  proceeds  thereof  are  applied,  in  each  case, in  a  substantially  contemporaneous   acquisition of similar replacement property;          (k)   leases, subleases, licenses or sublicenses of property in the ordinary course   of  business  that  do  not  materially  interfere  with  the  business  of  the  Company  and  its   Subsidiaries;                                    125                





 






               (l)   sales,  transfers,  leases  and  other  dispositions  of property  in  the  ordinary        course of business consisting of the abandonment of intellectual property rights which, in        the  reasonable  good  faith  determination  of  the  Company  and  in  the  exercise  of  its        reasonable  business  judgment,  are  not  material  to  the  conduct  of  the  business  of  the        Company and its Subsidiaries;               (m)   sales,  transfers,  leases  and  other  dispositions  of Investments  in  joint         ventures and non-wholly owned Subsidiaries of the Company to the extent required by, or         made pursuant to, buy and sell arrangements or similar arrangements between the parties         holding  the  Equity  Interests  of  such  Persons  set  forth  in  joint  venture  arrangements  or         similar binding agreements;                (n)   sales, transfers, leases and other dispositions of real property and related         assets  in  the  ordinary  course  of  business  in  connection  with  relocation  of  officers  or         employees of the Company and the Subsidiaries;                (o)   voluntary terminations of Swap Agreements;                (p)   the expiration of any option to buy or sell any real or personal property; and                (q)   Liens permitted by Section 6.02, Investments permitted by Section 6.04 and        Restricted Payments permitted by Section 6.08;               (r)   sales  of  Receivables  and  Related  Assets  in  connection  with  Permitted        Customer Factoring Program; and               (s)   sales  of  Securitization  Assets  in  connection  with  any  Qualified        Securitization Facility or the disposition of an account receivable in connection with the        collection  or  compromise  thereof  in  the  ordinary  course  of  business  or  consistent  with        industry practice or in bankruptcy or similar proceedings.         provided that all sales, transfers, leases and other dispositions permitted hereby shall be  made for (x) fair value (other than those permitted by paragraphs (b), (f), (i), (k), (l), (m), (n), (p)  and  (q)  above)  and  (y)  at  least  75%  cash  consideration  (other  than  those  permitted  by  paragraphs (b), (f), (i), (j), (l), (m), (p) and (q) above and other than any such sale, transfer, lease  or other disposition (whether in one transaction or a series of related transactions) of assets with a  fair market value up to  $20,000,000), in each case other than Excluded Transactions (it being  understood that the exclusions set forth in this proviso shall not limit the effect of Section 6.09);  and  provided,  further,  that  no  sale,  transfer  or  other  disposition  shall  be  permitted  under  this  Section 6.05, if prohibited under Section 6.03).         SECTION 6.06.  Sale and Leaseback Transactions.  No Loan Party will, nor will it permit  any of the Subsidiaries to, enter into any arrangement, directly or indirectly, whereby it shall sell  or transfer any property, real or personal, used or useful in its business, whether now owned or  hereafter acquired, and thereafter rent or lease such property or other property that it intends to use  for substantially the same purpose or purposes as the property sold or transferred, except for any  such  arrangement  (a)  involving  a  sale  of  any  fixed or  capital  assets  by  any  Borrower  or  any  Subsidiary that is made for cash consideration in an amount not less than the fair value of such                                        126    





 






   fixed or capital asset and is consummated within 180 days after such Borrower or such Subsidiary  acquires  or  completes  the  construction  of  such  fixed  or  capital  asset  and  (b)  that  is  made  in  accordance with Section 6.01(e) or (t)(ii).         SECTION 6.07.  Swap Agreements.  No Loan Party will, nor will it permit any of the  Subsidiaries to, enter into any Swap Agreement, except (a)  Swap Agreements entered into in order  to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating  rate to another floating rate or otherwise) or currency with respect to any interest-bearing liability  or Investment of any Borrower or any Subsidiary and not for speculative purposes; and (b) in  accordance  with  the  Commodity  Price  Risk  Management  Guidelines  attached  hereto  as  Schedule 6.07 or as otherwise approved by the Administrative Agent in its Permitted Discretion.         SECTION 6.08.  Restricted  Payments;  Certain  Payments  of  Indebtedness  and  Management Fees.  (a) No Loan Party will, nor will it permit any of the Subsidiaries to, declare or  make,  or  agree  to  pay  or  make,  directly  or  indirectly,  any  Restricted  Payment,  or  incur  any  obligation (contingent or otherwise) to do so, except:                     (i)   each Borrower may declare and pay dividends with respect to its               common stock payable solely in additional shares of its common stock, and, with               respect to its preferred stock, payable solely in additional shares of such preferred               stock or in shares of its common stock;                      (ii)  Subsidiaries may declare and pay dividends ratably with respect to,               or  purchase,  redeem,  retire,  acquire,  cancel  or  terminate,  ratably,  their  Equity               Interests;                      (iii)  the  Company  may  make  Restricted  Payments  in  the  form  of  the               purchase or redemption of (A) Equity Interests of the Company held by present or               former directors, officers or employees of the Company or any of its Subsidiaries               (or  the  estate,  heirs,  family  members,  spouses  or  former  spouses  of  any  of  the               foregoing) or by any employee stock or similar plan or agreement; provided that              the aggregate amount of such Restricted Payments under this clause (a)(iii)(A) shall              not exceed in any Fiscal Year $10,000,000 and (B) fractional shares of stock;                      (iv)  distributions or payments of Securitization Fees;                      (v)   Restricted  Payments  made  to  acquire  the  common  stock  in  a               Subsidiary held by one or more minority shareholders to the extent such acquisition               is permitted pursuant to Section 6.04;                     (vi)  Tax Distributions;                     (vii)  non-cash repurchases of Equity Interests deemed to occur upon the              exercise or vesting of stock options or similar Equity Interests if such repurchased              Equity  Interests  represent  a  portion  of  the  exercise  price  of  such  options  or              payments of Taxes made by the Company or the Subsidiaries in respect of options              or  similar  Equity  Interests  exercised  or  vested  in connection  with  such  Equity              Interests;                                        127    





 






                           (viii)  Restricted Payments in an aggregate amount not to exceed the then         amount available under the Additional Equity Interest Basket;                 (ix)  to  the  extent  constituting  a  Restricted  Payment,  the  Loan  Parties         may enter into the transactions permitted pursuant to (A) Section 6.03(a)(i), (a)(ii)        or (a)(iii) for the purpose of paying the acquisition consideration pursuant to any        merger  or  consolidation  referred  to  therein;  (B)  Section  6.03(a)(i)  or  (a)(v)  in        connection with any liquidation or dissolution referred to therein; or (C) Section        6.05 (other than Section 6.05(g)); and               (x)   the Company may make any other Restricted Payments, provided        that both immediately before and after giving effect to the payment of each such        Restricted Payment, on a Pro Forma Basis, (i) the Borrowers shall be in compliance        with the covenant set forth in Section 6.13, (ii) Availability is not less than the        greater of $250,000,000 or 30% of the Revolving Commitment, and (iii) no Default        or Event of Default shall have occurred and be continuing.         (b)   No Loan Party will, nor will it permit any of the Subsidiaries to, make or  agree to pay or make, directly or indirectly, any payment or other distribution (whether in  cash,  securities  or  other  property)  of  or  in  respect  of  principal  of  or  interest  on  any  unsecured Indebtedness that is Material Indebtedness, or any payment or other distribution  (whether  in  cash,  securities  or  other  property),  including  any  sinking  fund  or  similar  deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or  termination of any Indebtedness, except:               (i)   payment of regularly scheduled interest and principal payments as        and when due, subject to any restrictions set forth in this Agreement (including,        without limitation, the restrictions set forth in Section 6.01(t));               (ii)  (A) any refinancing, refunding, extension, renewal or replacement        of such Indebtedness to the extent permitted by Section 6.01, (B) repayment of any        Indebtedness of the Moy Park Target or any of its Subsidiaries outstanding on the        date the Moy Park Acquisition is consummated, and (C) any principal payments        made  with  respect  to  any  Indebtedness  under  a  revolving  credit  or  receivables        facility of a Foreign Subsidiary; and               (iii)  any  payment  or  other  distribution  of,  or  in  respect  of,  or  any        repurchase, redemption, retirement, acquisition, cancellation or termination, at any        time and from time to time, of all or any portion of such Indebtedness in an amount        not to exceed the amount available under the Additional Equity Interest Basket or        in exchange for Equity Interests of the Company or any direct or indirect parent of        the Company.         (c)   No Loan Party will, nor will it permit any of the Subsidiaries to, make or  agree to pay any Management Fees if any Default or Event of Default shall have occurred  and be continuing or would result therefrom; provided however that such Management                                   128                





 






         Fees shall still accrue during such time that any Default or Event of Default has occurred        and is continuing.         SECTION 6.09.  Transactions with Affiliates.  No Loan Party will, nor will it permit any  of the Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease  or otherwise acquire any property or assets from, or otherwise engage in any other transactions  with, any of its Affiliates, except               (a)   transactions that (i) are in the ordinary course of business and (ii) are at         prices and on terms and conditions not less favorable to such Borrower or such Subsidiary         than could be obtained on an arm’s-length basis from unrelated third parties;                (b)   transactions between or among any Loan Parties not involving any other         Affiliate;                (c)   the  following  transactions  between  or  among  any  Loan  Parties  and  any        Subsidiaries that are not Loan Parties:                     (i)   any Indebtedness permitted under Section 6.01(b), (c), (d), (j), (k),              (r) and (y) and any refinancing, refunding, extension, renewal or replacement of              any of the foregoing permitted under Section 6.01;                     (ii)  any transaction permitted under Section 6.03(a);                     (iii)  any Investments permitted under Section 6.04;                     (iv)  Guarantees permitted under Section 6.01(b), (d), (f), (i), (j) and (k)              and 6.04 (provided that this paragraph (iv) shall only extend to the Borrower or              Subsidiary whose obligations are being Guaranteed and not to the beneficiary of              such Guarantee); and                     (v)   any  sale,  transfer  or  other  disposition  of  (A)  Inventory  in  the              ordinary  course  of  business  and  consistent  with  historical  practice  to  (1)  any              Subsidiary other than PPC Mexico and its subsidiaries and (2) PPC Mexico or any              of its subsidiaries or (B) any other personal property (other than Inventory) in an              aggregate amount (determined in relation to the net book value of such property)              not  to  exceed  $25,000,000  per  Fiscal  Year;  provided  that,  with  respect  to              clause (A)(1) above, all the net cash flow of each such Subsidiary shall be promptly              paid to the Company; and provided, further, that, with respect to clause (B) above,              any  proceeds  received  within  one  year  of  the  initial  sale,  transfer  or  other              disposition of such property by a Subsidiary that is not a Loan Party from the re-             disposition of such property shall be promptly paid to the Loan Party that sold,              transferred or otherwise disposed of such property to such Subsidiary in the form              received (net of any amounts previously paid to such Loan Party as consideration              for such disposition), either as sales proceeds or as a dividend or other distribution              (the “Excluded Transactions”);                     (vi)  any Liens permitted by Section 6.02(c), (e), (j) and (k);                                        129    





 






                     (d)   any  transaction  permitted  by  Section  6.08(a),  6.08(b)(iii)  (to  the  extent  utilizing amounts available pursuant to the Additional Equity Interest Basket) or 6.12(b);         (e)   the  payment  of  reasonable  fees  to  directors  of  any Borrower  or  any  Subsidiary who are not employees of such Borrower or Subsidiary, and compensation and  employee  benefit  arrangements  paid  to,  and  indemnities  provided  for  the  benefit  of,  directors,  officers  or  employees  of  the  Borrowers  or  their  Subsidiaries  in  the  ordinary  course of business;         (f)   any  issuances  of  securities  or  other  payments,  awards  or  grants  in  cash,  securities  or  otherwise  pursuant  to,  or  the  funding  of,  employment  agreements,  stock  options and stock ownership plans approved by a Borrower’s board of directors;         (g)   employment,  severance  agreements,  change  of  control  or  other  similar   agreements or arrangements entered into in the ordinary course of business;          (h)   subscription agreements or similar agreements pertaining to the repurchase   of Equity Interests pursuant to put/call rights or similar rights with employees, directors   and officers of the Company or the Subsidiaries;          (i)   any purchase, sale or resale of common Equity Interests of or contributions   to the common equity capital of the Company, in each case, by, for or on behalf of the   Company  or  a  stockholder  thereof  (including  any  customary  agreement  in  connection   therewith); provided that any purchase or sale of common Equity Interests by the Company  or any Loan Party shall be subject to Section 6.09(a)(ii);         (j)   transactions exclusively among Subsidiaries that are not Loan Parties;         (k)   the following transactions with any Affiliate that is not a Subsidiary:               (i)   Indebtedness permitted under Section 6.01(b), and (r); and               (ii)  Investments permitted under Section 6.04(b), (e), (h), (q) (provided        that the relevant  Investments are  at prices and  on terms and  conditions not less        favorable  than  could  be  obtained  on  an  arm’s-length  basis  from  unrelated  third        parties), (s) and (t).         (l)   any agreement in effect between (x) an Affiliate of a Loan Party and (y) a   Person that is not a Loan Party immediately prior to a Permitted Acquisition, which Person   described in clause (y) becomes a Loan Party at the time of a Permitted Acquisition, so  long  as  such  agreement  was  not  entered  into  in  contemplation  of  such  Permitted  Acquisition;          (m)   any  agreement  that  provides  customary  registration rights  to  the  equity  holders of the Company and the performance of such agreements;                                    130                





 






               (n)   Permitted  Subordinated  Indebtedness  provided  by  an Affiliate  to  a  Loan        Party  or  any  of  its  Subsidiaries  in  an  aggregate  principal  amount  not  exceeding        $250,000,000; and               (o)   sales Securitization Assets in connection with any Qualified Securitization        Facility and any other transaction effected in connection with a Qualified Securitization        Facility or a financing related thereto.         SECTION 6.10.  Restrictive Agreements.  No Loan Party will, nor will it permit any of  the Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement or other  arrangement that prohibits, restricts or imposes any condition upon (a) the ability of such Loan  Party or any of the Subsidiaries to create, incur or permit to exist any Lien upon any of its property  or assets to secure the Secured Obligations (and any refinancing, refunding, extension, renewal or  replacement thereof), or (b) the ability of any Subsidiary to pay dividends or other distributions  with respect to any shares of its Equity Interests or to make or repay loans or advances to any  Borrower or any other Subsidiary or to Guarantee  Indebtedness of any  Borrower or any other  Subsidiary; provided that the foregoing shall not apply to (i) restrictions and conditions imposed  by Requirements of Law or by any Loan Document; (ii) restrictions and conditions imposed on  the  Loan  Parties  existing  on  the  Effective  Date  identified  on  Schedule  6.10  and  amendments,  modifications, extensions renewals, replacements or refinancings thereof (but shall apply to any  refinancing, refunding, extension, renewal or replacement of, or any amendment or modification  expanding the scope of, any such restriction or condition); (iii) restrictions and conditions imposed  upon the Company (but solely with respect to the Equity Interests held by the Company in PPC  Mexico or any other Foreign Subsidiary), PPC Mexico and its Subsidiaries, and any other Foreign  Subsidiary and its Subsidiaries, in each case with respect to Indebtedness of PPC Mexico or such  other Foreign Subsidiary permitted by Section 6.01(i); (iv) customary restrictions and conditions  contained in agreements relating to the sale, transfer, lease or other disposition of a Subsidiary or  asset  in  a  transaction  permitted  under  Section  6.05  pending  such  sale,  transfer,  lease  or  other  disposition, (provided that such restrictions and conditions apply only to the Subsidiary or asset  that is to be sold, transferred, leased or otherwise disposed and such sale, transfer, lease or other  disposition  is  otherwise  permitted  hereunder);  (v) customary  provisions  in  joint  venture  agreements and other similar agreements applicable to joint ventures or Equity Interests therein  entered  into  in  the  ordinary  course  of  business;  (vi)  customary  provisions  contained  in  leases,  subleases, licenses or sublicenses of intellectual property and other similar agreements entered into  in the ordinary course of business that do not materially interfere with the business of the Company  and  its  Subsidiaries;  (vii)  restrictions  created  in  connection  with  any  Qualified  Securitization  Facility that, in the good faith determination of the Borrower Representative, are necessary or  advisable  to  effect  such  Qualified  Securitization  Facility;  (viii)  restrictions  and  conditions  contained in the documentation governing the 2015 Senior Notes and the 2017 Senior Notes; and  (ix) any agreement in effect at the time such Person becomes a Subsidiary of the Company, so  long  as  such  agreement  was  not  entered  into  in  contemplation  of  such  Person  becoming  a  Subsidiary  of  the  Company  (provided  that  such  restrictions  and  conditions  apply  only  to  such  Subsidiary, its Subsidiaries and their respective assets, and not any Loan Party or other Subsidiary  or the assets of any Loan Party or other Subsidiary); and provided, further, that clause (a) of the  foregoing shall not apply to (A) restrictions or conditions imposed by any agreement relating to  secured Indebtedness or sale and leaseback transactions otherwise permitted by this Agreement if  such restrictions or conditions apply only to the property or assets securing such Indebtedness and                                        131    





 






   (B)  customary  provisions  in  any  agreement  entered  into  in  the  ordinary  course  of  business  restricting the assignment thereof.         SECTION 6.11.  Amendment of Material Documents.  No Loan Party will, nor will it  permit any of the Subsidiaries to, amend, modify or waive any of its rights under (a) any agreement  relating to any Indebtedness the payment of which is subordinated to payment of the Obligations  (including the Permitted Subordinated Indebtedness); (b) its certificate of incorporation, by-laws,  operating,  management  or  partnership  agreement  or  other  organizational  documents;  (c)  any  Material Agreement; (d) the Mexican Credit Facility or the guarantee by the Company thereof; or  (e) any material agreement entered into in connection with the 2015 Senior Notes, in each case to  the extent any such amendment, modification or waiver:                     (i)   could reasonably be expected to be materially adverse to the rights,              interests or privileges of the Administrative Agent or the other Lender Parties or              their ability to enforce the same;                     (ii)  solely with respect to Section 6.11(a), results in the imposition or              expansion in any material respect of any restriction or burden on the Borrowers or              any of the Subsidiaries; or                     (iii)  individually or in the  aggregate, could  reasonably be  expected to               result in a Material Adverse Effect.          SECTION 6.12.  Capital Expenditures.  The Borrowers will not, nor will they permit any  Subsidiary  to,  incur  or  make  any  Capital  Expenditures  during  any  Fiscal  Year  in  an  amount  exceeding $500,000,000.         SECTION 6.13.  Minimum  Consolidated  Tangible  Net  Worth.   The  Borrowers  shall  maintain as of the Fiscal Quarter ending September 30, 2018, and as of the end of each Fiscal  Quarter thereafter, Consolidated Tangible Net Worth of not less than an amount equal to the sum  of (a) $150,000,000, plus (b) for the Fiscal Quarter ending December 30, 2018, an amount equal  to 50% of Net Income (excluding any Net Income that is a loss for such period of determination)  of  the  Company  and  the  Subsidiaries  for  such  Fiscal  Quarter,  as  reported  in  the  Company’s  unaudited financial statements for such Fiscal Quarter, on a cumulative basis, plus (c) for the Fiscal  Year  ended 2019 and  each Fiscal Year thereafter, an amount equal to 50% of cumulative Net  Income (excluding any Net Income that is a loss for such period of determination) of the Company  and the Subsidiaries as reported in the Company’s audited financial statements for each such Fiscal  Year, in each case for purposes of this clause (c), on a cumulative basis.         SECTION 6.14.  Change in Fiscal Year.  No Borrower will make any change in its fiscal  year.                                     ARTICLE VII                                                                        EVENTS OF DEFAULT         If any of the following events (any such event, an “Event of Default”) shall occur:                                         132    





 






                     (a)   the  Borrowers  shall  fail  to  pay  any  principal  of  any  Loan  or  any  reimbursement obligation in respect of any LC Disbursement when and as the same shall  become due and payable, whether at the due date thereof or at a date fixed for prepayment  thereof or otherwise;         (b)   the Borrowers shall fail to pay any interest on any Loan or any fee or any  other Obligation (other than an amount referred to in paragraph (a) of this Article) payable  pursuant to this Agreement, when and as the same shall become due and payable, and such  failure shall continue unremedied for a period of three Business Days;          (c)   any representation or warranty made or deemed made by or on behalf of  any Loan Party or any Subsidiary in this Agreement or any other Loan Document, or in  any report, certificate, financial statement or other document furnished pursuant to or in  connection with this Agreement or any other Loan Document, shall prove to have been  incorrect  in  any  material  respect  (or,  in  the  case of  any  representation,  warranty  or  statement qualified by materiality, in any respect) when made or deemed made;         (d)   any Loan Party shall fail to observe or perform any covenant, condition or  agreement contained in Section 5.02(a), 5.03 (with respect to a Loan Party’s existence) or  5.08 or in Article VI;         (e)   subject  to  paragraph  (o)  below,  any  Loan  Party  shall  fail  to  observe  or  perform any covenant, condition or agreement contained in this Agreement or any other  Loan Document (other than those which constitute a default under another Section of this  Article), and such failure shall continue unremedied for a period of (i) three Business Days  if such breach relates to the terms or provisions of Section 5.01(f) (or, if such breach is of  the requirement to report weekly pursuant to the parenthetical of Section 5.01(f), three  Business Days); (ii) 10 Business Days after notice thereof from the Administrative Agent  (which notice will be given at the request of any Lender) if such breach relates to terms or  provisions of Section 5.02 (other than Section 5.02(a)), 5.03 (other than with respect to a  Loan  Party’s  existence),  5.06  or  5.07(b);  or  (iii) 30  days  after  notice  thereof  from  the  Administrative Agent (which notice will be given at the request of any Lender) if such  breach relates to terms or provisions of any other Section of this Agreement;          (f)   any Loan Party or any Subsidiary shall fail to make any payment (whether  of principal or interest and regardless of amount) in respect of any Material Indebtedness,  when and as the same shall become due and payable after the expiration of any applicable  grace periods provided for therein;         (g)   any  event  or  condition  occurs  that  results  in  any  Material  Indebtedness   becoming due prior to its scheduled maturity or that enables or permits (after the expiration   of any applicable grace periods provided for therein) the holder or holders of any such   Indebtedness or any trustee or agent on its or their behalf to cause any such Indebtedness   to become due, or to require the prepayment, repurchase, redemption or defeasance thereof,   prior to its scheduled maturity (it being understood that margin calls in respect of Swap   Agreements shall not constitute a defeasance or default in respect thereof); provided that  this paragraph (g) shall not apply to Indebtedness secured by assets that are voluntarily                                  133                





 






               sold, transferred or disposed of, or that become subject to a casualty or condemnation event,  that becomes due as a result of any such sale, transfer or disposition (including as a result  of a casualty or condemnation event and to the extent such sale, transfer or disposition is  not prohibited under this Agreement);         (h)   an involuntary proceeding shall be commenced or an involuntary petition  shall be filed seeking (i) bankruptcy, liquidation, reorganization or other relief in respect  of a Loan Party or any Subsidiary of any Loan Party or its debts, or of a substantial part of  its  assets,  under  any  Federal,  state  or  foreign  bankruptcy,  insolvency,  receivership  or  similar  law  now  or  hereafter  in  effect  or  (ii)  the appointment  of  a  receiver,  trustee,  custodian, sequestrator, conservator or similar official for any Loan Party or any Subsidiary  of  any  Loan  Party  or  for  a  substantial  part  of  its assets,  and,  in  any  such  case,  such  proceeding or petition shall continue undismissed or unstayed for 90 days or an order or  decree approving or ordering any of the foregoing shall be entered;         (i)   any Loan Party or any Subsidiary of any Loan Party shall (i) voluntarily  commence any proceeding or file any petition seeking liquidation, reorganization or other  relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar  law now or hereafter in effect; (ii) consent to the institution of, or fail to contest in a timely  and  appropriate  manner,  any  proceeding  or  petition described  in  paragraph  (h)  of  this  Article;  (iii)  apply  for  or  consent  to  the  appointment  of  a  receiver,  trustee,  custodian,  sequestrator, conservator or similar official for such Loan Party or Subsidiary of any Loan  Party  or  for  a  substantial  part  of  its  assets;  (iv)  file  an  answer  admitting  the  material  allegations  of  a  petition  filed  against  it  in  any  such  proceeding;  (v)  make  a  general  assignment for the benefit of creditors; or (vi) take any action for the purpose of effecting  any of the foregoing;         (j)   any Loan Party or any Subsidiary of any Loan Party shall become unable,  admit in writing its inability or fail generally to pay its debts as they become due;         (k)   one or more judgments for the payment of money in an aggregate amount   in excess of $25,000,000 (to the extent not adequately covered by insurance as to which   the  insurer  has  not  denied  coverage)  shall  be  rendered  against  any  Loan  Party,  any   Subsidiary or any  combination thereof and the same shall remain unpaid, unbonded or   undischarged  for  a  period  of  60  consecutive  days  during  which  execution  shall  not  be   effectively stayed, or any action shall be legally taken by a judgment creditor to execute to   enforce any such judgment (as opposed to filing or recording such judgment) or any Loan   Party or any Subsidiary shall fail within 60 days to discharge one or more non-monetary   judgments or orders which, individually or in the aggregate, could reasonably be expected   to result in a Material Adverse Effect, which judgments or orders, in any such case, are not   stayed  on  appeal  or  otherwise  being  appropriately  contested  in  good  faith  by  proper   proceedings diligently pursued;          (l)   an ERISA Event shall have occurred that, when taken together with all other   ERISA Events that have occurred, could reasonably be expected to result in a Material   Adverse Effect;                                   134                





 






               (m)   a reasonable basis shall exist for the assertion against any Loan Party or any        Subsidiary, or any predecessor in interest of any Loan Party or any Subsidiary, of (or there        shall  have  been  asserted  against  any  Loan  Party  or any  Subsidiary)  a  claim  for  any        Environmental  Liability  that,  individually  or  in  the  aggregate,  could  reasonably  be        expected to result in a Material Adverse Effect;               (n)   a Change in Control shall occur;               (o)   the occurrence of any “Event of Default” (as defined in the U.S. Security        Agreement);               (p)   any Loan Guaranty shall fail to remain in full force or effect or any action         shall be taken by (i) any Loan Party or any of its Affiliates or (ii) any other Person (other         than a Lender Party or its Affiliates) if, in the case of this clause (ii), such action has a        reasonable  likelihood  of  being  determined  in  a  manner  adverse  to  the  Loan  Parties,  to        discontinue or to assert the invalidity or unenforceability of any Loan Guaranty or any        Loan Guarantor shall deny that it has any further liability under any  Loan Guaranty to        which it is a party, or shall give notice to such effect (except as expressly provided for        herein);               (q)   any Collateral Document shall for any reason fail to create a valid, perfected        first  priority  security  interest  (subject  to  Permitted  Liens)  in  any  material  portion  of        Collateral purported to be covered thereby (other than to the extent such failure results from        failure  by  the  Administrative  Agent  to  file  UCC  financing  statements  or  continuation        statements under the UCC in respect of such security interest), except as permitted by the        terms of any Collateral Document, or any Collateral Document shall fail to remain in full        force or effect or any action shall be taken by (i) any Loan Party or any of its Affiliates or        (ii) any other Person (other than a Lender Party or its Affiliates) if, in the case of this clause        (ii), such action has a reasonable likelihood of being determined in a manner adverse to the        Loan Parties, to discontinue or to assert the invalidity or unenforceability of any Collateral        Document; or               (r)   any material provision of any Loan Document for any reason ceases to be        valid,  binding  and  enforceable  in  accordance  with  its  terms  (or  any  Loan  Party  shall        challenge the enforceability of any Loan Document or shall assert in writing, or engage in        any action or inaction based on any such assertion, that any provision of any of the Loan        Documents  has  ceased  to  be  or  otherwise  is  not  valid,  binding  and  enforceable  in        accordance with its terms);         then, and in every such event (other than an event with respect to the Borrowers described  in paragraph (h) or (i) of this Article), and at any time thereafter during the continuance of such  event, the Administrative Agent shall, at the request of the Required Lenders, by notice to the  Borrower Representative, take either or both of the following actions, at the same or different  times:   (i)  terminate  the  Commitments,  and  thereupon  the  Commitments  shall  terminate  immediately,  and  (ii)  declare  the  Loans  and  other  Obligations  then  outstanding  to  be  due  and  payable in whole (or in part, in which case any Obligations not so declared to be due and payable  may thereafter be declared to be due and payable), and thereupon the principal of the Loans and                                        135    





 






   other Obligations so declared to be due and payable, together with accrued interest thereon and all  fees and other obligations of the Borrowers accrued hereunder, shall become due  and payable  immediately, without presentment, demand, protest or other notice of any kind, all of which are  hereby waived by the Borrowers; and in case of any event with respect to the Borrowers described  in  paragraph  (h)  or  (i)  of  this  Article,  the  Commitments  shall  automatically  terminate  and  the  principal  of  the  Loans  and  other  Obligations  then  outstanding,  together  with  accrued  interest  thereon and all fees and other Obligations of the Borrowers accrued hereunder, shall automatically  become due and payable, without presentment, demand, protest or other notice of any kind, all of  which are hereby waived by the Borrowers.  Upon the occurrence and the continuance of an Event  of  Default,  the  Administrative  Agent  may,  and  at  the  request  of  the  Required  Lenders  shall,  exercise any rights and remedies provided to the Administrative Agent under the Loan Documents  or at law or equity, including all remedies provided under the UCC.                                    ARTICLE VIII                                                               ADMINISTRATIVE AGENT, ISSUING BANK,                    COLLATERAL, AND AFFILIATES OF LENDERS          SECTION 8.01.  Authorization and Action.               (a)   Each  of  the  Lenders  and  Issuing  Bank  hereby  irrevocably  appoints  the        Administrative Agent to act on its behalf as the Administrative Agent hereunder and under        the other Loan Documents and authorizes the Administrative Agent to take such actions        on its behalf and to exercise such powers as are delegated to the Administrative Agent by        the  terms  hereof  or  thereof,  together  with  such  actions  and  powers  as  are  reasonably        incidental  thereto.  The  provisions  of  this  Article 8  are  solely  for  the  benefit  of  the        Administrative Agent, the Lenders, and Issuing Bank, and no Loan Party has rights as a        third party beneficiary of any of such provisions. It is understood and agreed that the use        of the term “agent” herein or in any other Loan Documents (or any other similar term) with        reference to the Administrative Agent is not intended to connote any fiduciary or other        implied  (or  express)  obligations  arising  under  agency  doctrine  of  any  applicable  law.        Instead such term is used as a matter of market custom, and is intended to create or reflect        only an administrative relationship between contracting parties.                (b)   The Administrative Agent shall also act as the collateral agent under the         Loan Documents, and each of the Lenders and Issuing Bank hereby irrevocably appoints         and authorizes the Administrative Agent to act as the agent of such Lender and Issuing         Bank for purposes of acquiring, holding, and enforcing any and all Liens on Collateral         granted by any of the Loan Parties to secure any of the Obligations, together with such         powers  and  discretion  as  are  reasonably  incidental thereto.  In  this  connection,  the         Administrative Agent, as collateral agent and any co-agents, sub-agents, and attorneys-in-        fact appointed by the Administrative Agent pursuant to Section 8.5 for purposes of holding        or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral        Documents, or for exercising any rights and remedies thereunder at the direction of the        Administrative Agent, shall be entitled to the benefits of all provisions of this Article 8 and        Section 9.03 as if set forth in full herein with respect thereto. The Administrative Agent is        authorized on behalf of all the Lenders, without the necessity of any notice to or further                                        136    





 






               consent from the Lenders or Issuing Bank, from time to time to take any action with respect  to any Collateral or the Loan Documents which may be necessary to perfect and maintain  perfected the Liens upon any Collateral granted pursuant to any Collateral Document.           (c)   The  Collateral  Agent  shall  have  the  same  rights,  powers,  immunities,  indemnities and exclusions from liability as are prescribed in favor of the Administrative  Agent in this Agreement, which shall apply equally to the Collateral Agent acting in its  capacity as such.   SECTION 8.02.  Administrative Agent and its Affiliates.         (a)   The Person serving as the Administrative Agent hereunder shall have the  same rights and powers in its capacity as a Lender as any other Lender and may exercise  the  same  as  though  it  were  not  the  Administrative  Agent  and  the  term  “Lender”  or  “Lenders”  shall,  unless  otherwise  expressly  indicated  or  unless  the  context  otherwise  requires, include the Person serving as the Administrative Agent hereunder in its individual  capacity. Such Person and its Affiliates may accept deposits from, own securities of, lend  money to, act as the financial advisor or in any advisory capacity for and generally engage  in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as  if it were not the Administrative Agent hereunder and without any duty to account therefor  to the Lenders.         (b)   Each Lender and Issuing Bank understands that the Person serving as the  Administrative Agent, acting in its individual capacity, and its Affiliates (collectively, the  “Agent’s  Group”)  is  engaged  in  a  wide  range  of  financial  services  and  businesses  (including investment management, financing, securities trading, corporate and investment  banking  and  research)  (such  services  and  businesses  are  collectively  referred  to  in  this  Article 8 as “Activities”) any may engage in the Activities with or on behalf of one or more  of the Loan Parties or their respective Affiliates. Furthermore, the members of the Agent’s  Group  may,  in  undertaking  the  Activities,  engage  in  trading  in  financial  products  or  undertake other investment businesses for its own account or on behalf of others (including  the Loan Parties and their Affiliates and including holding, for its own account or on behalf  of others, equity, debt and similar positions in the Company, another Loan Party or their  respective Affiliates), including trading in or holding long, short or derivative positions in  securities, loans, or other financial products of one or more of the Loan Parties or their  Affiliates. Each Lender and Issuing Bank understands and agrees that in engaging in the  Activities, the members of the Agent’s Group may receive or otherwise obtain information  concerning the Loan Parties or their Affiliates (including information concerning the ability  of the Loan Parties to perform their respective obligations hereunder and under the other  Loan Documents) which information may not be available to any of the Lenders that are  not  members  of  the  Agent’s  Group.  Neither  the  Administrative  Agent  nor  any  other  member of the Agent’s Group shall have any duty to disclose to any Lender or Issuing  Bank or use on behalf of any Lender or Issuing Bank, nor be liable for the failure to so  disclose  or  use,  any  information  whatsoever  about  or  derived  from  the  Activities  or  otherwise  (including  any  information  concerning  the  business,  prospects,  operations,  property,  financial  and  other  condition  or  creditworthiness  of  any  Loan  Party  or  any  Affiliate of any Loan Party) or to account for any revenue or profits obtained in connection                                  137                





 






         with the Activities, except that the Administrative Agent shall deliver or otherwise make        available to each Lender such documents as are expressly required by any Loan Document        to be transmitted by the Administrative Agent to the Lenders.                (c)   Each  Lender  and  Issuing  Bank  further  understands  that  there  may  be        situations where members of the Agent’s Group or their respective customers (including        the Loan Parties and their Affiliates) either now have or may in the future have interests or        take actions that may conflict with the interests of any one or more of the Lenders or Issuing        Banks (including the interests of any Lender or Issuing Bank hereunder and under the other        Loan Documents). Each Lender and Issuing Bank agrees that no member of the Agent’s        Group is or shall be required to restrict its activities as a result of any Person serving as the        Administrative Agent being a member of the Agent’s Group, and that each member of the        Agent’s  Group  may  undertake  any  Activities  without further  consultation  with  or        notification of any Lender or Issuing Bank. None of (i) this Agreement nor any other Loan        Document,  (ii)  the  receipt  by  the  any  members  of  the  Agent’s  Group  of  information        (including  information  concerning  the  ability  of  the  Loan  Parties  to  perform  their        respective obligations hereunder and under the other Loan Documents), or (iii) any other        matter, shall give rise to any fiduciary, equitable, or except as expressly provided in this        Agreement, contractual duties (including any duty of trust, care or confidence), owing by        the Administrative Agent or any member of the Agent’s Group to any Lender or Issuing        Bank including any such duty that would prevent or restrict any member of the Agent’s        Group from acting on behalf of customers (including the Loan Parties or their Affiliates)        or for its own account.         SECTION 8.03.  Duties.  The  Administrative  Agent  shall  not  have  any  duties  or  obligations except those expressly  set  forth herein and in the other  Loan Documents. Without  limiting the generality of the foregoing, the Administrative Agent:               (a)   shall not be subject to any fiduciary or other implied duties, regardless of        whether a Default has occurred and is continuing;                (b)   shall  not  have  any  duty  to  take  any  discretionary  action  or  exercise  any         discretionary  powers,  except  discretionary  rights  and  powers  expressly  contemplated         hereby  or  by  the  other  Loan  Documents  that  the  Administrative  Agent  is  required  to         exercise as directed in writing by the Required Lenders (or such other number or percentage         of the Lenders as shall be expressly provided for herein or in the other Loan Documents);         provided that the Administrative Agent shall not be required to take any action that, in its        opinion or the opinion of its counsel, may expose the Administrative Agent to liability or        that is contrary to any Loan Document or applicable law, including for the avoidance of        doubt any action that may be in violation of the automatic stay under any Debtor Relief        Law or that may effect a forfeiture, modification or termination of property of a Defaulting        Lender in violation of any Debtor Relief Law;                 (c)   shall  not,  except  as  expressly  set  forth  herein  and  in  the  other  Loan         Documents, have any duty to disclose, and shall not be liable for the failure to disclose,         any  information  relating  to  any  Loan  Party  or  any  of  their  respective  Affiliates  that  is                                         138    





 






               communicated to or obtained by the Person serving as the Administrative Agent or any of  its Affiliates in any capacity; and         (d)   shall not be liable for any damage or loss resulting from or caused by events  or  circumstances  beyond  the  Administrative  Agent's reasonable  control,  including  nationalization,  expropriation,  currency  or  funds  transfer  restrictions,  the  interruption,  disruption, or suspension of the normal procedures and practices of any securities market,  power,  mechanical,  communications,  or  other  technological  failures  or  interruptions,  computer viruses or the like, fires, floods, earthquakes, or other natural disasters, civil, and  military  disturbance,  acts  of  war  or  terrorism,  riots,  revolution,  acts  of  God,  work  stoppages, strikes, national disasters of any kind, or other similar events or acts, or errors  by the Borrower in its instructions to the Administrative Agent.   SECTION 8.04.  Administrative Agent’s Reliance, Etc.         (a)   The Administrative Agent shall not be liable for any action taken or not  taken by it (i) with the consent or at the request of the Required Lenders (or such other  number or percentage of the Lenders as shall be necessary, or as the Administrative Agent  shall believe in good faith shall be necessary, under the circumstances provided in Section  9.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined  by  a  court  of  competent  jurisdiction  by  final  and  nonappealable  judgment.  The  Administrative Agent shall be deemed not to have knowledge of any Default or Event of  Default unless and until a Loan Party, a Lender, or Issuing Bank has given written notice  describing  such  Default  or  Event  of  Default  to  the Administrative  Agent.  The  Administrative Agent shall not be responsible for or have any duty to ascertain or inquire  into  (i)  any  statement,  warranty  or  representation made  in  or  in  connection  with  this  Agreement or any other Loan Document, (ii) the contents of any certificate, report or other  document delivered hereunder or thereunder or in connection herewith or therewith, (iii)  the  performance  or  observance  of  any  of  the  covenants,  agreements  or  other  terms  or  conditions set forth herein or therein or the occurrence of any Default or Event of Default,  (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other  Loan  Document  or  any  other  agreement,  instrument  or  document,  or  the  creation,  perfection or priority of any Lien purported to be created by the Collateral Documents, or  (v) the satisfaction of any condition set forth in Article 4 or elsewhere herein or therein,  other  than  to  confirm  receipt  of  items  expressly  required  to  be  delivered  to  the  Administrative Agent.         (b)   The Administrative Agent shall be entitled to rely upon, and shall not incur  any  liability  for  relying  upon,  any  notice,  request,  certificate,  consent,  statement,  instrument,  document,  or  other  writing  (including  any  electronic  message,  Internet  or  intranet website posting or other distribution) believed by it to be genuine and to have been  signed, sent, or otherwise authenticated by the proper Person. The Administrative Agent  also may rely upon any statement made to it orally or by telephone and believed by it to be  made  by  the  proper  Person,  and  shall  not  incur  any liability  for  relying  thereon.  In  determining  compliance  with  any  condition  hereunder  to  the  making  of  a  Loan,  or  the  issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be  fulfilled to the satisfaction of a Lender or Issuing Bank, the Administrative Agent may                                  139                





 






         presume  that  such  condition  is  satisfactory  to  such  Lender  or  Issuing  Bank  unless  the        Administrative  Agent  shall  have  received  notice  to the  contrary  from  such  Lender  or        Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The        Administrative Agent may consult with legal counsel (who may be counsel for a Loan        Party), independent accountants and other experts selected by it, and shall not be liable for        any action taken or not taken by it in accordance with the advice of any such counsel,        accountants or experts.         SECTION 8.05.  Sub-Agents.  The  Administrative  Agent  may  perform  any  and  all  its  duties  and  exercise  its  rights  and  powers  hereunder  or  under  any  other  Loan  Document  by  or  through any one or more sub-agents appointed by the Administrative Agent. The Administrative  Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers  by or through their respective Related Parties. The Administrative Agent is authorized on behalf  of all the Lenders, without the necessity of any notice to or further consent from the Lenders or  Issuing  Bank,  from  time  to  time  to  permit  any  co-agents,  sub-agents  and  attorneys-in-fact  appointed by the Administrative Agent to take any action with respect to any Collateral or the  Loan Documents which may be necessary to perfect and maintain perfected the Liens upon any  Collateral granted pursuant to any Collateral Document. The exculpatory provisions of this Article  8,  as  well  as  all  other  indemnity  and  expense  reimbursement  provisions  of  this  Agreement  (including, without limitation, Section 9.03), shall apply to any such sub-agent and to the Related  Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective  activities in connection with the syndication of the credit facilities provided for herein as well as  activities as the Administrative Agent and as though such co-agents, sub-agents and attorneys-in- fact were the “collateral agent” under the Loan Documents. The Administrative Agent shall not be  responsible for the negligence or misconduct of any sub-agent except to the extent that a court of  competent jurisdiction determines in a final and nonappealable judgment that the Administrative  Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.         SECTION 8.06.  Resignation.               (a)   The Administrative Agent may resign at any time by giving notice of its        resignation to the Lenders, Issuing Bank, and the Borrowers. Upon receipt of any such        notice of resignation, the Required Lenders shall have the right, in consultation with and,        so long as no Default or Event of Default then exists, subject to the approval (not to be        unreasonably withheld or delayed) of, the Borrower Representative, to appoint a successor,        which shall be a financial institution with an office in the United States, or an Affiliate of        any such financial institution with an office in the United States. If no successor shall have        been so appointed by the Required Lenders and, if applicable, the Borrower Representative        and shall have accepted such appointment within 30 days after the retiring Administrative        Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required        Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may,        on  behalf  of  the  Lenders  and  Issuing  Bank,  appoint a  successor  Administrative  Agent        meeting the qualifications set forth above. Whether or not a successor has been appointed,        such resignation shall become effective in accordance with such notice on the Resignation        Effective Date.                                         140    





 






               (b)   With  effect  from  the  Resignation  Effective  Date  (i)  the  retiring        Administrative Agent shall be discharged from its duties and obligations hereunder and        under the other Loan Documents (except that in the case of any possessory Collateral held        by the Administrative Agent on behalf of the Lenders or Issuing Bank under any of the        Loan Documents, the retiring Administrative Agent shall continue to hold such Collateral        until such time as a successor Administrative Agent is appointed) and (ii) except for any        indemnity  payments  owed  to  the  retiring  Administrative  Agent,  all  payments,        communications  and  determinations  provided  to  be  made  by,  to  or  through  the        Administrative Agent shall instead be made by or to each Lender and each Issuing Bank        directly, until such time as the Required Lenders appoint a successor Administrative Agent        as  provided  for  above.  Upon  the  acceptance  of  a  successor’s  appointment  as  the        Administrative Agent hereunder, such successor shall succeed to and become vested with        all of the rights, powers, privileges and duties of the retiring Administrative Agent (other        than any rights to indemnity payments owed to the retiring Administrative Agent) and the        retiring  Administrative  Agent shall be discharged from all of its duties  and obligations        hereunder or under the other Loan Documents. The fees payable by the Borrowers to a        successor Administrative Agent shall be the same as those payable to its predecessor unless        otherwise  agreed  between  the  Borrowers  and  such  successor.  After  the  retiring        Administrative Agent’s resignation hereunder and under the other Loan Documents, the        provisions of this Article and Section 9.03 shall continue in effect for the benefit of such        retiring Administrative Agent, its sub-agents and their respective Related Parties in respect        of any actions taken or omitted to be taken by any of them while the retiring Administrative        Agent was acting as the Administrative Agent.               (c)   Any resignation by CoBank as the Administrative Agent pursuant to this        Article shall also constitute its resignation as Collateral Agent, Issuing Bank and Swingline        Lender. Upon the acceptance of a successor’s appointment as the Administrative Agent        hereunder, (i) such successor shall succeed to and become vested with all of the rights,        powers, privileges and duties of the retiring Collateral Agent, Issuing Bank and Swingline        Lender,  (ii)  the  retiring  Collateral  Agent,  Issuing  Bank  and  Swingline  Lender  shall  be        discharged from all of their respective duties and obligations hereunder or under the other        Loan  Documents,  and  (iii)  the  successor  Issuing  Bank  shall  issue  letters  of  credit  in        substitution for the Letters of Credit, if any, outstanding at the time of such succession or        make other arrangements reasonably satisfactory to the retiring Issuing Bank to effectively        assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit.         SECTION 8.07.  Lender Credit Decision. Each Lender and Issuing Bank acknowledges  that it has, independently and without reliance upon the Administrative Agent or any other Lender  or any of their Related Parties and based on such documents and information as it has deemed  appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender  and  Issuing  Bank also  acknowledges that it will, independently  and  without reliance upon the  Administrative  Agent  or  any  other  Lender  or  any  of their  Related  Parties  and  based  on  such  documents and information as it shall from time to time deem appropriate, continue to make its  own decisions in taking or not taking action under or based upon this Agreement, any other Loan  Document or any related agreement or any document furnished hereunder or thereunder.                                          141    





 






         SECTION 8.08.  Other Agent Titles. Anything herein to the contrary notwithstanding,  none of the “Joint Bookrunners”, “Lead Arranger”, “Joint Lead Arrangers”, “Joint Syndication  Agents”, or “Joint Documentation Agents” listed on the cover page hereof shall have any powers,  duties or responsibilities under this Agreement or any of the other Loan Documents, except in its  capacity, as applicable, as the Administrative Agent, Collateral Agent, a Lender or Issuing Bank  hereunder.         SECTION 8.09.  Agent  May  File  Proofs  of  Claim;  Bankruptcy  Events. In  case  of  the  pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative  to  any  Loan  Party  or  any  Subsidiary,  the  Administrative  Agent  (irrespective  of  whether  the  principal of any Loan or LC Disbursement shall then be due and payable as herein expressed or  by declaration or otherwise and irrespective of whether the Administrative Agent shall have made  any demand any Loan Party or any other Person primarily or secondarily liable) shall be entitled  and empowered (but not obligated), by intervention in such proceeding or otherwise:               (a)   to file and prove a claim for the whole amount of the principal and interest        owing and unpaid in respect of the Loans, LC Disbursements and all other Obligations that        are owing and unpaid and to file such other documents as may be necessary or advisable        in order to have the claims of the Lenders, Issuing Bank, and the Administrative Agent        (including  any  claim  for  the  reasonable  compensation,  expenses,  disbursements  and        advances of the Lenders, Issuing Bank, and the Administrative Agent and their respective        agents  and  counsel  and  all  other  amounts  due  the  Lenders,  Issuing  Bank,  and  the        Administrative  Agent  under  Article  2  and  Section  9.03)  allowed  in  such  judicial        proceeding; and               (b)   to collect and receive any monies or other property payable or deliverable        on any such claims and to distribute the same in accordance with this Agreement;               (c)   and  any  custodian,  receiver,  assignee,  trustee,  liquidator,  sequestrator  or        other similar official in any such judicial proceeding is hereby authorized by each Lender        and Issuing Bank to make such payments to the Administrative Agent and, in the event that        the Administrative Agent shall consent to the making of such payments  directly to the        Lenders and  Issuing Bank, to pay to the Administrative Agent any  amount due for the        reasonable  compensation,  expenses,  disbursements  and  advances  of  the  Administrative        Agent and its agents and counsel, and any other amounts due the Administrative Agent        under Article 2 and Section 9.03.         SECTION 8.10.  Collateral.   (a)  The  Administrative  Agent  shall  have  no  obligation  whatsoever to any of the Secured Parties to assure that the Collateral exists or is owned by any  Loan Party or its Subsidiaries or is cared for, protected, or insured or has been encumbered, or that  the Administrative Agent’s Liens have been properly or sufficiently or lawfully created, perfected,  protected,  or  enforced  or  are  entitled  to  any  particular  priority,  or  that  any  particular  items  of  Collateral meet the eligibility criteria applicable in respect thereof or whether to impose, maintain,  reduce, or eliminate any particular reserve hereunder or whether the amount of any such reserve is  appropriate or not, or to exercise at all or in any particular manner or to continue exercising, any  of the rights, authorities and powers granted or available to the Administrative Agent pursuant to  any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any                                        142    





 






   act, omission, or event related thereto, subject to the terms and conditions contained herein, the  Administrative Agent may act in any manner it may deem appropriate, in its sole discretion given  the Administrative Agent’s own interest in the Collateral in its capacity as one of the Lenders and  that the Administrative Agent shall have no other duty or liability whatsoever to any Secured Party  as to any of the foregoing, except as otherwise provided herein.               (b)   The Secured Parties hereby irrevocably authorize the Administrative Agent,        based upon the instruction of the Required Lenders, to (i) consent to, credit bid or purchase        (either  directly  or  through  one  or  more  acquisition  vehicles)  all  or  any  portion  of  the        Collateral  at  any  sale  thereof  conducted  under  the provisions  of  the  Bankruptcy  Code,        including under Section 363 of the Bankruptcy Code, (ii) credit bid or purchase (either        directly or through one or more acquisition vehicles) all or any portion of the Collateral at        any sale or other disposition thereof conducted under the provisions of the UCC, including        pursuant  to  Section  9-610  or  9-620  of  the  UCC,  or  (iii)  credit  bid  or  purchase  (either        directly or through one or more acquisition vehicles) all or any portion of the Collateral at        any other sale or foreclosure conducted by the Administrative Agent (whether by judicial        action or otherwise) in accordance with applicable law. In connection with any such credit        bid or purchase, (A) the Obligations owed to the Secured Parties shall be entitled to be, and        shall  be,  credit  bid  on  a  ratable  basis  (with  Obligations  with  respect  to  contingent  or        unliquidated claims being estimated for such purpose if the fixing or liquidation thereof        would not unduly delay the ability of the Administrative Agent to credit bid or purchase at        such sale or other disposition of the Collateral and, if such claims cannot be estimated        without unduly delaying the ability of the Administrative Agent to credit bid, then such        claims shall be disregarded, not credit bid, and not entitled to any interest in the asset or        assets purchased by means of such credit bid) and the Secured Parties whose Obligations        are credit bid shall be entitled to receive interests (ratably based upon the proportion of        their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid)        in the asset or assets so purchased (or in the Equity Interests of the acquisition vehicle or        vehicles that are used to consummate such purchase), and (B) the Administrative Agent,        based upon the instruction of the Required Lenders, may accept non-cash consideration,        including debt and equity securities issued by such acquisition vehicle or vehicles and in        connection therewith the Administrative Agent may reduce the Obligations owed to the        Secured Parties (ratably based upon the proportion of their Obligations credit bid in relation        to the aggregate amount of Obligations so credit bid) based upon the value of such non-       cash consideration.         SECTION 8.11.  Issuing Bank. Neither Issuing Bank nor any of its Related Parties shall  be liable to any Lender Party for any action taken or omitted to be taken by any of them hereunder  or otherwise in connection with any Loan Document except for its or their own gross negligence  or willful misconduct. Without limiting the generality of the preceding sentence, Issuing Bank (a)  shall have no duties or responsibilities except those expressly set forth in the Loan Documents,  and shall not by reason of any Loan Document be a trustee or fiduciary for any Lender or for the  Administrative Agent, (b) shall not be required to initiate any litigation or collection proceedings  under any Loan Document, (c) shall not be responsible to any Lender or the Administrative Agent  for any recitals, statements, representations, or warranties contained in any Loan Document, or  any certificate or other documentation referred to or provided for in, or received by any of them  under, any Loan Document, or for the value, validity, effectiveness, enforceability, or sufficiency                                        143    





 






   of any Loan Document or any other documentation referred to or provided for therein or for any  failure by any Person to perform any of its obligations thereunder,  (d)  may consult with legal  counsel (including counsel for the Loan Parties or the Administrative Agent), independent public  accountants, and other experts selected by it and shall not be liable for any action taken or omitted  to be taken in  good faith by it in accordance with the advice of such counsel, accountants, or  experts, and (e) shall incur no liability under or in respect of any Loan Document by acting upon  any notice, consent, certificate, or other instrument or writing believed by it to be genuine and  signed or sent by the proper party or parties. As to any matters not expressly provided for by any  Loan Document, Issuing Bank shall in all cases be fully protected in acting, or in refraining from  acting,  hereunder  in  accordance  with  instructions  signed  by  the  Required  Lenders,  and  such  instructions of the Required Lenders and any action taken or failure to act pursuant thereto shall  be binding on all of the Lenders and the Administrative Agent; provided, however, that Issuing  Bank shall not be required to take any action which Issuing Bank reasonably believes exposes it  to personal liability or which Issuing Bank reasonably believes is contrary to any Loan Document  or applicable law.         SECTION 8.12.  Agency for Perfection. The Administrative Agent hereby appoints each  other Lender (and each Bank Product Provider) as its agent (and each Lender hereby accepts (and  by entering into a Bank Product Provider Letter Agreement, each Bank Product Provider shall be  deemed to accept) such appointment) for the purpose of perfecting the Administrative Agent’s  Liens in assets which, in accordance with Article 8 or Article 9, as applicable, of the UCC can be  perfected by possession or control. Should any Lender obtain possession or control of any such  Collateral,  such  Lender  shall  notify  the  Administrative  Agent  thereof,  and,  promptly  upon  the  Administrative Agent’s request therefor shall deliver possession or control of such Collateral to  the Administrative Agent or in accordance with the Administrative Agent’s instructions.          SECTION 8.13.  Affiliates of Lenders; Bank Product Providers. By accepting the benefits  of the Loan Documents, any Affiliate of a Lender that is owed any Bank Product Obligation is  bound  by  the  terms  of  the  Loan  Documents.  Notwithstanding  the  foregoing:  (a)  neither  the  Administrative Agent, any Lender nor any Loan Party shall be obligated to deliver any notice or  communication required to be delivered to any Lender under any Loan Documents to any Affiliate  of any Lender; and (b) no Affiliate of any Lender that is owed any Bank Product Obligation shall  be  included  in  the  determination  of  the  Required  Lenders  or  entitled  to  consent  to,  reject,  or  participate in any manner in any amendment, waiver or other modification of any Loan Document.  The  Administrative  Agent  shall  deal  solely  and  directly  with  the  related  Lender  of  any  such  Affiliate  in  connection  with  all  matters  relating  to  the  Loan  Documents.  The  Bank  Product  Obligation owed to such Affiliate shall be considered the Secured Obligations of its related Lender  for all purposes under the Loan Documents and such Lender shall be solely responsible to the other  parties hereto for all the obligations of such Affiliate under any Loan Document. It is understood  and agreed that the rights and benefits under this Agreement, the Collateral Documents, and the  Loan Guaranties of each Bank Product Provider, in such capacity, consist exclusively of such Bank  Product Provider’s right to share in payments and collections of the Collateral and payments under  the Loan Guaranties; provided that for the avoidance of doubt, any release of Collateral or any  Loan Guarantors effected in the manner permitted by this Agreement shall not require the consent  of holders of any Bank Product Obligations (in such capacity).  All Bank Product Obligations shall  be  secured  but  on  a  silent  basis,  so  that  notwithstanding  any  other  provision,  if  any,  in  this  Agreement or any Collateral Document or Loan Guaranty, no Bank Product Provider shall be able                                        144    





 






   to take any action in respect of the Collateral or Loan Guaranties nor instruct the Required Lenders  or the Administrative Agent to take any such action nor have any rights in connection with the  management or release of any Collateral or the obligations of any Loan Guarantor under any Loan  Guaranty. By accepting the benefits of the Collateral and the Loan Guaranties, such Bank Product  Provider shall be deemed to have appointed the Administrative Agent as its agent and agreed to  be bound by the Loan Documents as a Secured Party, subject to the limitations set forth in this  Section 8.13.  The Administrative Agent shall not owe any fiduciary duty, duty of loyalty, duty of  care, duty of disclosure, or any other obligation whatsoever to any Bank Product Provider with  respect to any Bank Product Obligation. The Administrative Agent shall have no duty to determine  the  amount  or  the  existence  of  any  amounts  owing  under  any  Bank  Product  Obligations.  In  connection with any such distribution of payments and collections or termination or release by the  Administrative Agent of any Liens or Loan Guarantors thereunder, the Administrative Agent shall  be entitled to assume no amounts are due under any Bank Product Agreement unless such Bank  Product  Provider  has  notified  the  Administrative  Agent  in  writing  of  the  amount  of  any  such  liability owed to it at least 5 Business Days prior to such distribution, termination, or release.         Certain ERISA Matters.                (a)   Each Lender (x) represents and warrants, as of the date such Person became        a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender        party hereto to the date such Person ceases being a Lender party hereto, for the benefit of,        the Administrative Agent and each Lead Arranger and their respective Affiliates, and not,        for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party,        that at least one of the following is and will be true:                     (i)   such Lender is not using “plan assets” (within the meaning of 29              CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit              Plans in connection with the Loans, the Letters of Credit or the Commitments,                     (ii)  the transaction exemption set forth in one or more PTEs, such as              PTE 84-14 (a class exemption for certain transactions determined by independent              qualified professional asset managers), PTE 95-60 (a class exemption for certain              transactions  involving  insurance  company  general  accounts),  PTE  90-1  (a  class              exemption for certain transactions involving insurance company pooled separate              accounts), PTE 91-38 (a class exemption for certain transactions involving bank              collective  investment  funds)  or  PTE  96-23  (a  class exemption  for  certain              transactions determined by in-house asset managers), is applicable with respect to              such Lender’s entrance into, participation in, administration of and performance of              the Loans, the Letters of Credit, the Commitments and this Agreement,                      (iii)  (A)  such  Lender  is  an  investment  fund  managed  by  a “Qualified              Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B)              such Qualified Professional Asset Manager made the investment decision on behalf              of such Lender to enter into, participate in, administer and perform the Loans, the              Letters  of  Credit,  the  Commitments  and  this  Agreement,  (C)  the  entrance  into,              participation  in,  administration  of  and  performance  of  the  Loans,  the  Letters  of              Credit,  the  Commitments  and  this  Agreement  satisfies  the  requirements  of  sub-                                       145    





 






                     sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of        such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied        with respect to such Lender’s entrance into, participation in, administration of and        performance  of  the  Loans,  the  Letters  of  Credit,  the  Commitments  and  this        Agreement, or               (iv)  such other representation, warranty and covenant as may be agreed        in  writing  between  the  Administrative  Agent,  in  its  sole  discretion,  and  such        Lender.         (b)   In addition, unless sub-clause (i) in the immediately preceding clause (a) is  true  with  respect  to  a  Lender  or  such  Lender  has  not  provided  another  representation,  warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause  (a), such Lender further (x) represents and warrants, as of the date such Person became a  Lender party hereto, to, and (y) covenants, from the date such Person became a Lender  party hereto to the date such Person ceases being a Lender party hereto, for the benefit of,  the Administrative Agent and each other Lead Arranger and their respective Affiliates, and  not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan  Party, that:               (i)   none of the Administrative Agent or any of the Lead Arrangers or         any of their respective Affiliates is a fiduciary with respect to the assets of such         Lender (including in connection with the reservation or exercise of any rights by         the  Administrative  Agent  under  this  Agreement,  any Loan  Document  or  any         documents related to hereto or thereto),                (ii)  the Person making the investment decision on behalf of such Lender         with  respect  to  the  entrance  into,  participation  in,  administration  of  and         performance  of  the  Loans,  the  Letters  of  Credit,  the  Commitments  and  this         Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a         bank, an insurance carrier, an investment adviser, a broker-dealer or other person         that holds, or has under management or control, total assets of at least $50 million,         in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),6                (iii)  the Person making the investment decision on behalf of such Lender        with  respect  to  the  entrance  into,  participation  in,  administration  of  and        performance  of  the  Loans,  the  Letters  of  Credit,  the  Commitments  and  this        Agreement is capable of evaluating investment risks independently, both in general        and with regard to particular transactions and investment strategies (including in        respect of the Obligations),               (iv)  the Person making the investment decision on behalf of such Lender        with  respect  to  the  entrance  into,  participation  in,  administration  of  and        performance  of  the  Loans,  the  Letters  of  Credit,  the  Commitments  and  this        Agreement is a fiduciary under ERISA or the Code, or both, with respect to the        Loans,  the  Letters  of  Credit,  the  Commitments  and  this  Agreement  and  is                                   146                





 






               responsible  for  exercising  independent  judgment  in evaluating  the  transactions              hereunder, and                     (v)   no  fee  or  other  compensation  is  being  paid  directly  to  the              Administrative Agent or any Lead Arranger or any their respective Affiliates for              investment advice (as opposed to other services) in connection with the Loans, the              Letters of Credit, the Commitments or this Agreement.               (c)   The  Administrative  Agent,  and  each  Lead  Arranger  hereby  informs  the        Lenders that each such Person is not undertaking to provide impartial investment advice,        or to give advice in a fiduciary capacity, in connection with the transactions contemplated        hereby,  and  that  such  Person  has  a  financial  interest  in  the  transactions  contemplated        hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments        with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii)        may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments        for an amount less than the amount being paid for an interest in the Loans, the Letters of        Credit or the Commitments by such Lender or (iii) may receive fees or other payments in        connection with the transactions contemplated hereby, the Loan Documents or otherwise,        including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees,        underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees,        utilization  fees,  minimum  usage  fees,  letter  of  credit  fees,  fronting  fees,  deal-away  or        alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s        acceptance fees, breakage or other early termination fees or fees similar to the foregoing.                                     ARTICLE IX                                                                          MISCELLANEOUS         SECTION 9.01.  Notices.  (a) Except in the case of notices and other communications  expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and  other communications (“Communications”) provided for herein shall be in writing and shall be  delivered by hand or overnight courier service, mailed by certified or registered mail or sent by  telecopy or, subject to Section 9.01(b), by electronic communication, as follows:                     (i)   if to any Loan Party, to the Borrower Representative at:                           Pilgrim’s Pride Corporation                          1770 Promontory Circle                          Greeley, Colorado 80634                          Attention:  Fabio Sandri, Chief Financial Officer                          Telephone No.: (970) 506-8117                          Email:  fabio.sandri@pilgrims.com                      (ii)  if to the Administrative Agent, Swingline Lender or CoBank at:                           CoBank, ACB                          6340 S. Fiddlers Green Circle                                         147    





 






                           Greenwood Village, Colorado 80111                          Attention:  Credit Information Services                          Facsimile No.: (303) 224-6101                          Email: CIServices@cobank.com                                              (iii)  if to any other Lender or Issuing Bank to it at its address or facsimile              number set forth in its Administrative Questionnaire.         Communications  sent  by  hand  or  overnight  courier  service,  or  mailed  by  certified  or  registered mail, shall be deemed to have been given when received.  Communications sent by  telecopier shall be deemed to have been given when sent (except that, if not given before or during  normal business hours for the recipient, shall be deemed to have been given at the opening of  business  on  the  next  Business  Day).   Communications  delivered  through  electronic  communications to the extent provided in Section 9.01(b), shall be effective as provided in such  Section 9.01(b).               (b)   Electronic Communications.  Communications to the Administrative Agent        and the Lenders under the Loan Documents may be delivered or furnished by electronic        communications  pursuant  to  procedures  approved  by  the  Administrative  Agent.   The        Administrative  Agent  and  Borrowers  may,  in  their  discretion,  agree  to  accept  such        Communications to it under the Loan Documents by electronic communications pursuant        to procedures approved by it; provided that approval of such procedures may be limited to        particular  Communications.   Unless  the  Administrative  Agent  otherwise  prescribes,        (i) Communications sent to an e-mail address shall be deemed received upon the sender’s        receipt of an acknowledgment from the intended recipient (such as by the “return receipt        requested” function, as available, return e-mail or other written acknowledgment), and (ii)        Communications posted on an Internet or intranet website shall be deemed received upon        the deemed receipt by the intended recipient at its e-mail address as described in clause (i)        of this Section 9.01(b) notification that such Communications is available and identifying        the  website  address  thereof;  provided  that,  for  both  clauses  (i)  and  (ii)  of  this  Section        9.01(b), if such Communications is not sent before or during the normal business hours of        the recipient, such Communications shall be deemed to have been sent at the opening of        business on the next Business Day.               (c)   Change of Address for Notices.  Any party hereto may change its address        or telecopy number for, or individual designated to receive, Communications under the        Loan Documents by notice to the other parties hereto (or, in the case of any such change        by a Lender, by notice to Borrower Representative and the Administrative Agent).  All        Communications  given  to  any  party  hereto  in  accordance  with  the  provisions  of  this        Agreement shall be deemed to have been given on the date of receipt.                (d)   Electronic Transmission System.  Borrowers and the Lenders agree that the        Administrative  Agent  may  make  the  Communications  available  to  the  Lenders  and        Borrower by posting the Communications on Debt Domain,  IntraLinks,  SyndTrak or a        substantially  similar  electronic  transmission  system  or  digital  workspace  provider  (the        “Platform”).  THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”.  THE        AGENTS  DO  NOT  WARRANT  THE  ACCURACY  OR  COMPLETENESS        OF  THE                                        148    





 






         COMMUNICATIONS  OR  THE  ADEQUACY  OF  THE  PLATFORM  AND        EXPRESSLY  DISCLAIM  LIABILITY  FOR  ERRORS  OR  OMISSIONS  IN  THE        COMMUNICATIONS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR        STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS        FOR  A  PARTICULAR  PURPOSE,  NON-INFRINGEMENT  OF  THIRD  PARTY        RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE        BY  THE  AGENTS  IN  CONNECTION  WITH  THE  COMMUNICATIONS  OR  THE        PLATFORM.   IN  NO  EVENT  SHALL  THE  AGENTS  HAVE  ANY  LIABILITY  TO        BORROWER,  ANY  LENDER  OR  ANY  OTHER  PERSON  OR  ENTITY           FOR        DAMAGES  OF  ANY  KIND  INCLUDING  DIRECT  OR  INDIRECT,  SPECIAL,        INCIDENTAL  OR  CONSEQUENTIAL  DAMAGES,  LOSSES  OR  EXPENSES        (WHETHER  IN  TORT,  CONTRACT,  OR  OTHERWISE)  ARISING  OUT  OF        BORROWER’S      OR    ADMINISTRATIVE     AGENT’S     TRANSMISSION     OF        COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE        LIABILITY  OF  ANY  AGENTS  ARE  FOUND  IN  A  FINAL  NON-APPEALABLE        JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED        PRIMARILY  FROM  SUCH  AGENT’S  GROSS  NEGLIGENCE  OR  WILLFUL        MISCONDUCT;  PROVIDED,  HOWEVER,  THAT  IN  NO  EVENT  SHALL  ANY        AGENT HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER, OR ANY        OTHER PERSON FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR        PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES).                (e)   Communications through the Platform.  Each Lender agrees that notice to        it (as provided in the next sentence) specifying that the Communications have been posted        to the Platform shall constitute effective delivery of the Communications to such Lender        for purposes hereof.  Each Lender agrees (i) to provide to the Administrative Agent in        writing  (including  by  electronic  communication),  promptly  after  the  date  of  this        Agreement,  an e-mail address to which the foregoing notice may  be sent by electronic        transmission and (ii) that the foregoing notice may be sent to such e-mail address.                (f)   Reliance  on  Notices.   Administrative  Agent  and  the Lenders  shall  be        entitled to rely and act upon any notices (including telephonic notices of a Borrowing)        purportedly given by or on behalf of a Borrower even if (i) such notices were not made in        a manner specified herein, were incomplete or were not preceded or followed by any other        form of notice specified herein, or (ii) the terms thereof, as understood by the recipient,        varied  from  any  confirmation  thereof.   Borrowers  shall  indemnify  the  Administrative        Agent,  each  Lender,  and  the  Related  Parties  of  each  of  them  from  all  losses,  costs,        expenses,  and  liabilities  resulting  from  the  reliance  by  such  Person  on  each  notice        purportedly given by or on behalf of a Borrower.  The Administrative Agent may record        all telephonic notices to, and other telephonic communications with, the Administrative        Agent and each of the parties hereto hereby consents to such recording.         SECTION 9.02.  Waivers; Amendments.  (a) No failure or delay by any Lender Party in  exercising any right or power hereunder or under any other Loan Document shall operate as a  waiver  thereof,  nor  shall  any  single  or  partial  exercise  of  any  such  right  or  power,  or  any  abandonment or discontinuance of steps to enforce such a right or power, preclude any other or  further exercise thereof or the exercise of any other right or power.  The rights and remedies of the                                        149    





 






   Lender Parties hereunder and under any other Loan Document are cumulative and are not exclusive  of any rights or remedies that they would otherwise have.  No waiver of any provision of any Loan  Document or consent to any departure by any Loan Party therefrom shall in any event be effective  unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent  shall  be  effective  only  in  the  specific  instance  and  for  the  purpose  for  which  given.   Without  limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit  shall not be construed as a waiver of any Default, regardless of whether any Lender Party may  have had notice or knowledge of such Default at the time.               (b)   Neither this Agreement nor any other Loan Document nor any provision        hereof or thereof may be waived, amended, restated or otherwise modified except (i) in the        case of this Agreement, pursuant to an agreement or agreements in writing entered into by        the Borrowers and the Required Lenders; or (ii) in the case of any other Loan Document,        pursuant to an agreement or agreements in writing entered into by the Administrative Agent        and each Loan Party that is a party thereto, with the consent of the Required Lenders ;        provided that no such agreement shall:                           (A)   increase the Commitment of any Lender without the written                    consent of such Lender and any Voting Participant, it being understood that                    waivers,  amendments,  restatements  or  other  modifications  of  conditions                    precedent,  covenants,  Defaults  or  Events  of  Default  or  of  a  mandatory                    reduction in the aggregate commitments shall not constitute increases in any                    Commitment (provided that the Administrative Agent may make Protective                    Advances as set forth in Section 2.04);                           (B)   reduce or forgive the principal amount of any Loan or LC                    Disbursement or reduce the rate of interest thereon, or reduce or forgive any                    interest or fees payable hereunder, in each case without the written consent                    of each Lender and Voting Participant directly affected thereby; provided                    that nothing in this paragraph (B) shall restrict the ability of any Lender to                    reduce or forgive any amounts payable to such Lender with respect to any                    Loan or Letter of Credit without the consent of any other Lender or Voting                    Participant;                           (C)   except as otherwise provided in Sections 9.02(b)(I) and (J)                    below, extend the maturity of any Loan or postpone any scheduled date of                    payment of the regularly scheduled installment payments of principal of any                    Loan or LC Disbursement, or any date for the payment of any interest, fees                    or other Obligations payable hereunder, or reduce the amount of, waive or                    excuse any such payment, or postpone the scheduled date of expiration of                    any Commitment, without the written consent of each Lender and Voting                    Participant directly affected thereby;                           (D)   change Section 2.19(b) or (d) in a manner that would alter                    the manner in which payments are shared, without the written consent of                    each Lender and Voting Participant directly affected thereby;                                         150    





 






                           (E)   (1) increase the advance rates set forth in the definition of                    “Borrowing Base” or (2) make changes affecting (x) eligibility criteria, as                    such eligibility criteria are in effect on the Effective Date (including adding                    new categories of eligible assets or eliminating any categories of Reserves)                    under the Borrowing Base or (y) the definition of “Dilution Reserve” or                    “Value of Eligible Inventory”, in each case having the effect of increasing                    Availability, without the written consent of the Required Lenders and the                    Required Revolving Lenders (each voting as a separate class);                           (F)   change  (1)  any  of  the  provisions  of  this  Section,  (2)  the                     definitions of “Required Lenders”, “Required Revolving Lenders” or any                     other provision of any Loan Document specifying the number or percentage                     of Lenders (or Lenders of any Class) required to waive, amend or modify                     any  rights  thereunder  or  make  any  determination  or grant  any  consent                     thereunder,  or  (3)  the  definition  of  “Change  in  Control”,  in  each  case                     without the written consent of each Lender and Voting Participant;                            (G)   release  any  Loan  Guarantor  from  its  obligation  under  any                     Loan Guaranty to which it is a party (except as otherwise permitted herein,                     including without limitation pursuant to Sections 6.03, 6.05 and 9.02(e) and                    (f), or in the other Loan Documents), without the written consent of each                    Lender; or                           (H)   except as provided in paragraph (c) of this Section or in any                    Collateral  Document,  release  all  or  substantially  all  of  the  Collateral,                    without the written consent of each Lender and Voting Participant;           provided, further, that (i) no such agreement shall amend, modify or otherwise affect the  rights or duties of any Agent, the Swingline Lender or any Issuing Bank hereunder without the  prior written consent of such Agent, the Swingline Lender or such Issuing Bank, as applicable; (ii)  amendments pursuant to Section 2.10(d) shall be effective as described therein; and (iii) when a  Defaulting Lender shall exist, Section 2.21 shall control with respect to voting of such Lender that  is a Defaulting Lender.  The Administrative Agent may also amend the Commitment Schedule to  reflect assignments entered into pursuant to Section 9.04.               (c)   The Lender Parties hereby irrevocably authorize the Administrative Agent,        at its option and in its sole discretion, to release any Liens granted to the Administrative        Agent by the Loan Parties on any Collateral (i) upon the termination of all Commitments        and Full Satisfaction of all Secured Obligations; (ii) constituting property being sold or        disposed of if the Loan Party disposing of such property certifies to the Administrative        Agent that the sale or disposition is made in compliance with the terms of this Agreement        (and  the  Administrative  Agent  may  rely  conclusively  on  any  such  certificate,  without        further inquiry), and to the extent that the property being sold or disposed of constitutes        100% of the Equity Interests of a Subsidiary, the Administrative Agent is authorized to        release any Loan Guaranty provided by such Subsidiary; (iii) constituting property leased        to  a  Loan  Party  under  a  lease  which  has  expired  or been  terminated  in  a  transaction        permitted under this Agreement; (iv) as required to effect any sale or other disposition of                                        151    





 






               such Collateral in connection with any exercise of remedies of the Administrative Agent  and the Lenders pursuant to Article VII; (v) as provided in the Collateral Documents; or  (vi) to the extent required under Section 5.13(b).  Except as provided in  the preceding  sentence, the Administrative Agent will not release any Liens on Collateral without the  prior written authorization of the Required Lenders.  Any such release shall not in any  manner discharge, affect, or impair the Obligations or any Liens (other than those expressly  being released) upon (or obligations of the Loan Parties in respect of) all interests retained  by  the  Loan  Parties,  including  the  proceeds  of  any sale,  all  of  which  shall  continue  to  constitute part of the Collateral.  Nothing in this paragraph shall relieve the Administrative  Agent of any obligations to release the Liens on any Collateral to the extent required under  any Loan Document if the Loan Parties have satisfied the conditions for such release.          (d)   If,  in  connection  with  any  proposed  amendment,  waiver  or  consent   requiring  the  consent  of  “each  Lender”  or  “each  Lender  directly  affected  thereby”,  the   consent of the Required Lenders is obtained, but the consent of other necessary Lenders or   Voting Participants is not obtained (any such Lender or Voting Participant whose consent   is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then  the Borrowers may elect to replace a Non-Consenting Lender as a Lender party to this  Agreement or, with the consent of the Required Lenders, terminate the Commitments of  such  Lender  and  repay  all  non-contingent  Obligations  of  the  Borrowers  owing  to  such  Lender relating to the Loans held by such Lender as of such termination date; provided  that,  concurrently  with  such  replacement,  (i)  another  bank  or  other  entity  which  is  reasonably satisfactory to the Borrowers and the Administrative Agent shall agree, as of  such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting  Lender  pursuant  to  an  Assignment  and  Assumption  and  to  become  a  Lender  for  all  purposes  under  this  Agreement  and  to  assume  all  obligations  of  the  Non-Consenting  Lender to be terminated as of such date and to comply with the requirements of paragraph  (b) of Section 9.04, and (ii) the Borrowers shall pay to such Non-Consenting Lender in  same day funds on the day of such replacement (1) all interest, fees and other amounts then  accrued but unpaid to such Non-Consenting Lender by the Borrowers hereunder to and  including the date of termination, including without limitation payments due to such Non- Consenting Lender under Sections 2.16 and 2.18, and (2) an amount, if any, equal to the  payment which would have been due to such Lender or Voting Participant on the day of  such replacement under Section 2.17 had the Loans of such Non-Consenting Lender been  prepaid on such date rather than sold to the replacement Lender.          (e)   From time to time, the Company may cause one or more additional direct  or indirect, wholly-owned Subsidiaries to become Borrowers hereunder by delivering, or  causing  to  be  delivered,  to  the  Administrative  Agent  in  respect  of  each  applicable  Subsidiary,  the  following,  each  in  form  and  substance  reasonably  satisfactory  to  the  Administrative Agent: (i) a Joinder Agreement in the form of Exhibit M attached hereto,  executed and delivered by such Subsidiary (the date of each such Joinder Agreement being  referred  to  herein  as  a  “Joinder  Date”,  which  date shall  be  at  least  ten  days  after  the  Company  provides  notice  to  the  Administrative  Agent  of  its  intention  to  cause  such  Subsidiary  to  become  a  Borrower  hereunder),  (ii)  replacement  Notes  dated  as  of  the  applicable Joinder Date payable to each Lender for which an existing Note is outstanding  on  such  Joinder  Date,  (iii)  a  written  confirmation by  the  Loan  Guarantors  that  their                                  152                





 






               guarantee  obligations  shall  apply  to  the  obligations  of  such  Subsidiary  under  the  Loan  Documents  from  and  after  the  Joinder  Date  and  (iv) such  other  approvals,  opinions  or  documents  as  the  Administrative  Agent  may  reasonably  request;  provided  that  no  Subsidiary  may  become  a  Borrower  hereunder  pursuant  to  this  paragraph  (e)  if  (x)  a  Default or Event of Default shall have occurred and be continuing on the applicable Joinder  Date, or shall result from the joinder of such Subsidiary as a Borrower on such Joinder  Date,  or  (y)  such  Subsidiary  is  not  organized  under  the  laws  of  any  jurisdiction  of  the  United  States  or  Bermuda.   Without  limiting  the  foregoing,  if  the  designation  of  any  additional direct or indirect, wholly-owned Subsidiary as a Borrower hereunder obligates  the Administrative Agent or any Lender to comply with “know your customer” or similar  regulatory requirements and the information necessary for such compliance is not already  available to the Administrative Agent or such Lender, as applicable, the Company shall,  promptly  upon  the  request  of  the  Administrative  Agent  or  such  Lender,  as  applicable,  supply  such  documentation  and  other  evidence  as  is reasonably  requested  by  the  Administrative  Agent  or  such  Lender,  as  applicable,  in  order  for  it  to  comply  with  all  “know  your  customer”  and/or  similar  identification procedures  required  under  all  applicable laws and regulations.  Notwithstanding the foregoing, no assets of any Person  that becomes a Borrower hereunder will be included in the Borrowing Base until such time  as the Collateral Agent shall have conducted such field exams, audits and inspections of  such assets as it may require in its Permitted Discretion.           (f)   From time to time, the Company may cause any Loan Party (other than the  Company and Pilgrim’s Pride Corporation of West Virginia, Inc.) to cease to be a Loan  Party  hereunder  by  (i)  delivering  to  the  Administrative  Agent  a  notice  to  such  effect,  specifying the identity of the applicable Loan Party and the proposed date on which such  Loan Party shall no longer be a Loan Party hereunder, which date shall be no earlier than  five Business Days after delivery of such notice (each such date being referred to herein as  a  “Loan  Party  Removal  Date”)  and  (ii)  delivering,  or  causing  to  be  delivered,  to  the  Administrative Agent replacement Notes dated as of the applicable Loan Party Removal  Date payable to each Lender for which an existing Note is outstanding on such Loan Party  Removal Date, executed by the Company and each other Loan Party that shall not cease to  be  a  Loan  Party  on  such  Loan  Party  Removal  Date,  in  form  and  substance  reasonably  satisfactory to the Administrative Agent; provided  that no Loan Party may cease to be a  Loan Party hereunder pursuant to this Section 9.02(f) if (i) a Default or Event of Default  shall have occurred and be continuing on the applicable Loan Party Removal Date, or shall  result from such  Loan Party  ceasing to be a  Loan Party hereunder on such  Loan Party  Removal  Date,  (ii)  the  Loan  Party  to  be  removed  became  a  U.S.  Loan  Guarantor  or  a  Bermuda  Loan  Guarantor  pursuant  to  Section  5.13(a) or  (c),  (iii)  the  Loan  Party  to  be  removed is a Material Subsidiary, or (iv) the Loan Party to be removed is a Borrower and  the Loans of such Borrower have not been paid in full in cash prior to the applicable Loan  Party Removal Date. Upon satisfaction of the conditions set forth in the preceding sentence,  on the applicable Loan Party Removal Date, the applicable Loan Party shall no longer be  a “Borrower”, a “U.S.  Borrower,” a “Bermuda Borrower,” a “U.S.  Loan  Guarantor,” a  “Bermuda Loan Guarantor,” a “Loan Party”, as the case may be, hereunder or under any  other Loan Document.  Notwithstanding anything to the contrary contained herein, in the  event that any Loan Party shall cease to be a Loan Party hereunder in accordance with this  Section 9.02(f), the other Loan Parties shall remain jointly and severally liable with respect                                  153                





 






         to each Loan made to such Loan Party and each Letter of Credit issued for the account of        such Loan Party outstanding on the applicable Loan Party Removal Date.         SECTION 9.03.  Expenses;  Indemnity;  Damage  Waiver.   (a)  Except  as provided  in  Section 2.23, the Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses  incurred by the Administrative Agent, the Lead Arranger and their respective Affiliates (limited  in the case of legal fees to the reasonable, documented and invoiced out-of-pocket fees, charges  and disbursements of a single New York legal counsel for the Administrative Agent and the Lead  Arranger  and  their  respective  Affiliates,  and  one  local  counsel  in  each  jurisdiction  that  the  Administrative Agent may deem appropriate in its good faith discretion) in connection with the  syndication  and  distribution  (including  via  the  internet  or  through  the  Platform)  of  the  credit  facilities provided for herein, the preparation and administration of the Loan Documents or any  amendments, modifications or waivers of the provisions of the Loan Documents (whether or not  the transactions contemplated hereby or thereby shall be consummated); (ii) all reasonable and  documented out-of-pocket expenses (limited, in the case of attorneys’ fees, to the reasonable and  documented out-of-pocket fees, charges and disbursements of one outside counsel) incurred by the  applicable Issuing Bank in connection with the issuance, amendment, renewal or extension of any  Letter of Credit or any demand for payment thereunder; and (iii) all reasonable and documented  out-of-pocket expenses incurred by the Administrative Agent, any Issuing Bank or any Lender  (limited in the case of legal fees to the fees, charges and disbursements of a single general legal  counsel to collectively represent the Administrative Agent, the Lenders, the Lead Arranger and  their  respective  Affiliates,  and  of  a  single  local legal  counsel  to  collectively  represent  the  Administrative  Agent,  the  Lenders,  the  Lead  Arranger  and  their  respective  Affiliates  in  each  jurisdiction that the Administrative Agent may deem appropriate in its good faith discretion) in  connection with the enforcement, collection or protection of its rights in connection with the Loan  Documents, including its rights under this Section, or in connection with the Loans made or Letters  of Credit issued hereunder, including all such reasonable and documented out-of-pocket expenses  incurred in connection with any workout, restructuring or negotiations in respect of such Loans or  Letters of Credit.  Reasonable and documented out-of-pocket expenses being reimbursed by the  Borrowers under this Section include, without limiting the generality of the foregoing, costs and  expenses incurred in connection with:                           (A)   subject to Section 5.11, appraisals and insurance reviews;                           (B)   subject  to  Section  5.12,  field  examinations  and  the                    preparation of Reports based on the fees charged by a third party retained                    by the Collateral Agent;                           (C)   background checks regarding senior management and/or key                    investors, as deemed necessary or appropriate in the sole discretion of the                    Administrative Agent;                           (D)   taxes, fees and other charges, if any, for (1) Lien and title                    searches  and  title  insurance  and  (2)  recording  the Mortgages,  filing                    financing statements and continuations, and other actions to perfect, protect,                    and continue the Administrative Agent’s Liens;                                         154    





 






                                 (E)   sums paid or incurred to take any action required of any Loan              Party under the Loan Documents that such Loan Party fails to pay or take              (other than items being contested in good faith or Taxes being contested or              not paid in compliance with Section 5.04); and                     (F)   forwarding loan proceeds, collecting checks and other items              of payment, and establishing and maintaining the accounts and lock boxes,              and costs and expenses of preserving and protecting the Collateral.         (b)   Except  as  provided  in  Section  2.23,  the  Borrowers  shall,  jointly  and  severally, indemnify each Lender Party, the Lead Arranger and each Related Party of a  Lender  Party  or  the  Lead  Arranger  (each  such  Person  being  called  an  “Indemnitee”)  against, and hold each  Indemnitee harmless from, any and all losses,  claims, damages,  penalties, incremental taxes, liabilities and related expenses (limited in the case of legal  fees  to  the  reasonable,  documented  and  invoiced  out-of-pocket  fees,  charges  and  disbursements of one general legal counsel for all of the Indemnitees, taken as a whole,  one local legal counsel for all of the Indemnitees, taken as a whole, in each jurisdiction that  the Administrative Agent may deem appropriate in its good faith discretion, and, solely in  the case of a conflict of interest, one additional legal counsel for all of the Indemnitees,  taken as a whole) (collectively, a “Loss”) incurred by or asserted against any Indemnitee  arising out of, in connection with, or as a result of (i) the execution or delivery of this  Agreement,  the  Original  Credit  Agreement,  and  any  other  Loan  Document  or  any  agreement or instrument contemplated thereby, the performance by the parties hereto of  their respective obligations thereunder or the consummation of the Transactions or any  other transactions contemplated hereby; (ii) any Loan or Letter of Credit or the use of the  proceeds  therefrom  (including  any  refusal  by  an  Issuing  Bank  to  honor  a  demand  for  payment  under  a  Letter  of  Credit  if  the  documents  presented  in  connection  with  such  demand do not strictly comply with the terms of such Letter of Credit); (iii) any actual or  alleged  presence  or  release  of  Hazardous  Materials on  or  from  any  property  owned  or  operated  by  any  Borrower  or  any  of  the  Subsidiaries,  or  any  Environmental  Liability  related  in  any  way  to  any  Borrower  or  any  of  the  Subsidiaries;  (iv)  the  failure  of  the  Borrowers to deliver to the Administrative Agent the required receipts or other required  documentary  evidence  with  respect  to  a  payment  made  by  the  Borrowers  for  Taxes  pursuant to Section 2.18; or (v) any actual or prospective claim, litigation, investigation or  proceeding relating to any of the foregoing, whether based on contract, tort or any other  theory  and  regardless of whether any  Indemnitee is a party thereto; provided that such  indemnity shall not, as to any particular Indemnitee, be available to the extent that such  losses, claims, damages, penalties, liabilities or related expenses have resulted from (a) the  gross negligence or willful misconduct of such  Indemnitee or its Related Parties, (b)  a  breach in bad faith of such Indemnitee’s or its Related Parties’ obligations under the Loan  Documents,  in  each  case  of  clause  (a)  and  (b)  as  determined  by  a  court  of  competent  jurisdiction by final and nonappealable judgment and (c) any disputes primarily among  Indemnitees and not arising out of any act or omission of the Loan Parties or their Affiliates  (other than claims against an Indemnitee acting in its capacity as an Agent or Lead Arranger  or similar role).                                   155                





 






               (c)   To the extent that the Borrowers fail to pay any amount required to be paid         by  them  to  the  Administrative  Agent,  the  Collateral  Agent,  an  Issuing  Bank  or  the         Swingline Lender under paragraph (a) or (b) of this Section, each Lender severally agrees        to pay to the Administrative Agent, such Issuing Bank or the Swingline Lender, as the case        may be, such Lender’s Applicable Percentage (determined as of the time that the applicable        unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided        that the unreimbursed  expense or indemnified loss, claim, damage, penalty, liability or        related expense, as the case may be, was incurred by or asserted against the Administrative        Agent, such Issuing Bank or the Swingline Lender in its capacity as such.                (d)   To the extent permitted by Requirements of Law, no Loan Party shall assert,        and each hereby waives, any claim against any Indemnitee, on any theory of liability, for        special,  indirect,  consequential  or  punitive  damages  (as  opposed  to  direct  or  actual        damages)  arising  out  of,  in  connection  with,  or  as a  result  of,  this  Agreement  or  any        agreement  or  instrument  contemplated  hereby,  the  Transactions,  any  Loan  or  Letter  of        Credit or the use of the proceeds thereof.               (e)   All  amounts  due  under  this  Section  shall  be  payable  not  later  than  10        Business Days after written demand therefor, which demand shall set forth the basis for        such claim in reasonable detail.         SECTION 9.04.  Successors and Assigns.  (a) The provisions of this Agreement shall be  binding upon and inure to the benefit of the parties hereto and their respective successors and  assigns  permitted  hereby  (including  any  Affiliate  of  an  Issuing  Bank  that  issues  any  Letter  of  Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations  hereunder  without  the  prior  written  consent  of  each  Lender  and  Voting  Participant  (and  any  attempted assignment or transfer by a Borrower without such consent shall be null and void) and  (ii)  no  Lender  may  assign  or  otherwise  transfer  its  rights  or  obligations  hereunder  except  in  accordance with this Section.  Nothing in this Agreement, expressed or implied, shall be construed  to confer upon any Person (other than the parties hereto, their respective successors and assigns  permitted hereby (including any Affiliate of an Issuing Bank that issues any  Letter of Credit),  Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly  contemplated hereby, the Related Parties of each of the Agents, the Issuing Banks and the Lender  Parties) any legal or equitable right, remedy or claim under or by reason of this Agreement.               (b)   (i)   Subject to the conditions set forth in paragraph (b)(ii) below, any        Lender may assign to one or more assignees all or a portion of its rights and obligations        under this Agreement (including all or a portion of its Commitment and the Loans at the        time  owing  to  it)  with  the  prior  written  consent  (such  consent  not  to  be  unreasonably        withheld) of:                            (A)   the Borrower Representative; provided that no consent of the                    Borrower Representative shall be required for an assignment to a Lender,                    an Affiliate of a Lender or an Approved Fund of such Lender or, if an Event                    of Default has occurred and is continuing, any other assignee; provided that                    the Borrower Representative shall be deemed to have consented to any such                    assignment  unless  it  shall  object  thereto  by  written  notice  to  the                                        156    





 






               Administrative Agent within 10 Business Days after having received notice  thereof;         (B)   the Administrative Agent; provided that no consent of the  Administrative Agent shall be required for an assignment to a Lender, an  Affiliate of a Lender, or an Approved Fund of such Lender; and          (C)  in the case of an assignment of Revolving Commitments or  Revolving Loans, the Issuing Banks and the Swingline Lender.   (ii)  Assignments shall be subject to the following additional conditions:         (A)   except in the case of an assignment to a Lender, an Affiliate  of a Lender or any other Person under common control with such Lender,  or an assignment of the entire remaining amount of the assigning Lender’s  Commitment  or  Loans  of  any  Class,  the  amount  of  the  Commitment  or  Loans of the assigning Lender subject to each such assignment (determined  as  of  the  date  the  Assignment  and  Assumption  with  respect  to  such  assignment is delivered to the Administrative Agent) shall not be less than  $5,000,000  unless  each  of  the  Borrower  Representative  and  the  Administrative Agent otherwise consent; provided that no such consent of  the Borrower Representative shall be required if an Event of Default has  occurred and is continuing;         (B)   each partial assignment shall be made as an assignment of a  proportionate part of all the assigning Lender’s rights and obligations under  this  Agreement;  provided  that  this  paragraph  shall not  be  construed  to  prohibit the assignment of a proportionate part of all the assigning Lender’s  rights and obligations in respect of one Class of Commitments or Loans;          (C)  no assignment shall be made to (1) the Parent Entity or any  of  its  Affiliates  (including  the  Company  and  its  Subsidiaries),  (2)  any  natural Person or (3) any Defaulting Lender or any of its Subsidiaries, or  any Person who, upon becoming a Lender hereunder, would constitute any  of the foregoing Persons described in this clause (3);         (D)   the parties to each assignment shall execute and deliver to  the Administrative Agent an Assignment and Assumption, together with, in  each case other than an assignment by a Lender to any of its Affiliates or  any other Person under common control with such Lender, a processing and  recordation fee of $3,500; and         (E)   the assignee, if it shall not be a Lender, shall deliver to the  Administrative  Agent  an  Administrative  Questionnaire  in  which  the  assignee designates one or more credit contacts to whom all syndicate-level  information (which may contain material non-public information about the  Company,  the  Loan  Parties  and  their  Related  Parties  or  their  respective                       157                





 






                     securities) will be made available and who may receive such information in        accordance with the assignee’s compliance procedures and Requirements        of Law, including Federal and state securities laws.         (iii)  Subject  to  acceptance  and  recording  thereof  pursuant  to  paragraph (b)(v) of this Section, from and after the effective date specified in each  Assignment and Assumption the assignee thereunder shall be a party hereto and, to  the extent of the interest assigned by such Assignment and Assumption, have the  rights and obligations of a Lender under this Agreement, and the assigning Lender  thereunder  shall,  to  the  extent  of  the  interest  assigned  by  such  Assignment  and  Assumption, be released from its obligations under this Agreement (and, in the case  of an Assignment and Assumption covering all of the assigning Lender’s rights and  obligations under this Agreement, such Lender shall cease to be a party hereto but  shall continue to be entitled to the benefits of Sections 2.16, 2.17, 2.18 and 9.03).   Any  assignment  or  transfer  by  a  Lender  of  rights  or  obligations  under  this  Agreement that does not comply with this Section 9.04 shall be treated for purposes  of this Agreement as a sale by such Lender of a participation in such rights and  obligations in accordance with paragraph (c) of this Section.         (iv)  The Administrative Agent, acting for this purpose as an agent of the  Borrowers and the Lender Parties, shall maintain at one of its offices a copy of each  Assignment and Assumption delivered to it and a register for the recordation of the  names and addresses of the Lenders, and the Commitment of, and principal amount  (and stated interest) of the Loans and LC Disbursements owing to, each Lender  pursuant to the terms hereof from time to time (the “Register”).  The entries in the  Register  shall  be  conclusive,  absent  manifest  error,  and  the  Borrowers,  the  Administrative Agent, the other Agents, the Issuing Banks and the Lenders may  treat each Person whose name is recorded in the Register pursuant to the terms  hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding  notice  to  the  contrary.   The  Register  shall  be  available  for  inspection  by  the  Borrowers, the Agents, any Issuing Bank and any Lender, at any reasonable time  and from time to time upon reasonable prior notice.          (v)   Upon its receipt of a duly completed Assignment and Assumption   executed  by  an  assigning  Lender  and  an  assignee,  the  assignee’s  completed   Administrative  Questionnaire  (unless  the  assignee  shall  already  be  a  Lender   hereunder), the processing and recordation fee referred to in paragraph (b) of this  Section and any written consent to such assignment required by paragraph (b) of  this  Section,  the  Administrative  Agent  shall  accept  such  Assignment  and  Assumption and record the information contained therein in the Register; provided  that if either the assigning Lender or the assignee shall have failed to make any  payment required to be made by it pursuant to Section 2.04, 2.05, 2.06(d) or (e),  2.07(b), 2.19(c) or 9.03(c), the Administrative Agent shall have no obligation to  accept such Assignment and Assumption and record the information therein in the  Register unless and until such payment shall have been made in full, together with  all accrued interest thereon.  No assignment shall be effective for purposes of this  Agreement unless it has been recorded in the Register as provided in this paragraph.                            158                





 






                     (c)   (i)   any  Lender  may,  without  the  consent  of  the  Borrowers,  the   Administrative Agent or any other Lender Party, sell participations to one or more banks   or other entities (a “Participant”) in all or a portion of such Lender’s rights and obligations  under this Agreement (including all or a portion of its Commitment and the Loans owing  to  it);  provided  that  (A)  such  Lender’s  obligations  under  this  Agreement  shall  remain  unchanged; (B) such Lender shall remain solely responsible to the other parties hereto for  the performance of such obligations; and (C) the Borrowers, the Administrative Agent and  the  other  Lender  Parties  shall  continue  to  deal  solely  and  directly  with  such  Lender  in  connection  with  such  Lender’s  rights  and  obligations  under  this  Agreement.   Any  agreement or instrument pursuant to which a Lender sells such a participation shall provide  that such Lender shall retain the sole right to enforce this Agreement and to approve any  amendment, modification or waiver of any provision of this Agreement; provided that such  agreement or instrument may provide that such Lender will not, without the consent of the  Participant, agree to any amendment, modification or waiver described in the first proviso  to Section 9.02(b) that requires the vote of (1) all the Lenders or (2) each directly affected  Lender,  to  the  extent  that  such  Lender  is  directly affected  by  any  such  amendment,  modification  or  waiver  and  such  Participant  holds  a  participation  in  such  Lender’s  obligations  under  this  Agreement.   Subject  to  paragraph  (c)(ii)  of  this  Section,  the  Borrowers agree that each Participant shall be entitled to the benefits of Sections 2.16, 2.17  and  2.18  to  the  same  extent  as  if  it  were  a  Lender and  had  acquired  its  interest  by  assignment  pursuant  to  paragraph  (b)  of  this  Section.   To  the  extent  permitted  by  Requirements of Law, each Participant also shall be entitled to the benefits of Section 9.08  as though it were a Lender; provided that such Participant agrees to be subject to Section  2.19(c) as though it were a Lender.               (ii)  A Participant shall not be entitled to receive any greater payment        under Section 2.16 or 2.18 than the applicable Lender would have been entitled to        receive with respect to the participation sold to such Participant, unless the sale of        the participation to such Participant is made with the Borrower Representative’s        prior written consent.  A Participant that would be a Foreign Lender if it were a        Lender shall not be entitled to the benefits of Section 2.18 unless the Borrower        Representative  is  notified  of  the  participation  sold  to  such  Participant  and  such        Participant agrees, for the benefit of the Borrowers, to comply with Section 2.18(e)        as though it were a Lender.         (d)   Each Lender that sells a participation shall, acting solely for this purpose as  a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and  address  of  each  Participant  and  the  principal  amounts  (and  stated  interest)  of  each  Participant’s  interest  in  the  Loans  or  other  obligations  under  the  Loan  Documents  (the  “Participant Register”); provided that no Lender shall have any obligation to disclose all  or any portion of the Participant Register (including the identity of any Participant or any  information relating to a Participant's interest in any commitments, loans, letters of credit  or its other obligations under any Loan Document) to any Person except to the extent that  such disclosure is necessary to establish that such commitment, loan, letter of credit or  other  obligation  is  in  registered  form  under  Section  5f.103-1(c)  of  the  United  States  Treasury Regulations.  The entries in the Participant Register shall be conclusive absent  manifest error,  and such  Lender shall treat each  Person whose name is recorded in the                                  159                





 






         Participant Register as the owner of such participation for all purposes of this Agreement        notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative        Agent  (in  its  capacity  as  the  Administrative  Agent)  shall  have  no  responsibility  for        maintaining a Participant Register.               (e)   Any Lender may at any time pledge or assign a security interest in all or any         portion of its rights under this Agreement to secure obligations of such Lender, including         without limitation any pledge or assignment to secure obligations to a Federal Reserve         Bank or any central bank for such Lender, and this Section shall not apply to any such         pledge or assignment of a security interest; provided that no such pledge or assignment of        a security interest shall release a Lender from any of its obligations hereunder or substitute        any such pledgee or assignee for such Lender as a party hereto.                (f)   Notwithstanding  anything  in  Section  9.02(b)  or  this  Section  9.04  to  the        contrary, any Farm Credit System Institution that (i) is the owner of a participation in any        Commitment (including any Loans outstanding thereunder) initially in the amount of at        least $10,000,000; (ii) is, by written notice to the Borrowers and the Administrative Agent        (a “Voting Participant Notification”), designated by the selling Lender as being entitled to        be  accorded  the  rights  of  a  voting  participant  hereunder  (any  Farm  Credit  System        Institution  so  designated,  a  “Voting  Participant”);  and  (iii)  receives  the  prior  written        consent of the Borrower Representative (such consent of the Borrower Representative not        to be unreasonably withheld or delayed and not to be required if any Event of Default has        occurred and is continuing) and the Administrative Agent to become a Voting Participant,        shall be entitled to vote for so long as such  Farm Credit System  Institution owns such        participation  and  notwithstanding  any  subparticipation  by  such  Farm  Credit  System        Institution (and the voting rights of the selling Lender shall be correspondingly reduced,        on a dollar for dollar basis), as if such Voting Participant were a Lender, on any matter        requiring or allowing a Lender to provide or withhold its consent, or to otherwise vote on        any  proposed  action.   To  be  effective,  each  Voting Participant  Notification  shall,  with        respect to any Voting Participant, (A) state the full name, as well as all contact information        required for an assignee in the Assignment and Assumption; and (B) state the dollar amount        of the participation purchased.  The selling Lender and the Voting Participant shall notify        the Administrative Agent and the Borrower Representative within three Business Days of        any  termination  of,  reduction  or  increase  in  the  amount  of,  such  participation.   The        Borrowers  and  the  Administrative  Agent  shall  be  entitled  to  conclusively  rely  on        information contained in notices delivered pursuant to this paragraph (f).  Notwithstanding        the foregoing, each Farm Credit System Institution designated as a Voting Participant in        Schedule  9.04  shall  be  a  Voting  Participant  without  delivery  of  a  Voting  Participation        Notification and without the prior written consent of the Administrative Agent.  The voting        rights hereunder are solely for the benefit of the Voting Participants and shall not inure to        any assignee or participant of a Voting Participant.         SECTION 9.05.  Survival.   All  covenants,  agreements,  representations  and  warranties  made  by  the  Loan  Parties  in  the  Loan  Documents  and in  the  certificates  or  other  instruments  delivered in connection with or pursuant to this Agreement or any other Loan Document shall be  considered to have been relied upon by the other parties hereto and shall survive the execution and  delivery of the  Loan Documents and the making of any  Loans and issuance of any  Letters of                                        160    





 






   Credit,  regardless  of  any  investigation  made  by  any  such  other  party  or  on  its  behalf  and  notwithstanding that the Administrative Agent or any other Lender Party may have had notice or  knowledge of any Default or incorrect representation or warranty at the time any credit is extended  hereunder, and shall continue in full force and effect as long as the principal of or any accrued  interest on any Loan or any fee or any other amount payable under this Agreement is outstanding  and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired  or terminated.  The provisions of Sections 2.16, 2.17, 2.18, 9.03, 9.09 and 9.10 and Article VIII  shall survive and remain in full force and effect regardless of the consummation of the transactions  contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of  Credit and the Commitments or the termination of this Agreement or any provision hereof.  The  provisions of Section 9.12 shall survive and remain in full force and effect for a period of 18  months following the termination of this Agreement.         SECTION 9.06.  Counterparts;  Integration;  Effectiveness.   This  Agreement  may  be  executed in counterparts (and by different parties hereto on different counterparts), each of which  shall constitute an original, but all of which when taken together shall constitute a single contract.   This Agreement, the other Loan Documents and any separate letter agreements with respect to fees  payable to the Administrative Agent constitute the entire contract among the parties relating to the  subject matter hereof and supersede any and all previous agreements and understandings, oral or  written, relating to the subject matter hereof.  Except as provided in Section 4.01, this Agreement  shall become effective when it shall have been executed by the Administrative Agent and when  the Administrative Agent shall have received counterparts hereof which, when taken together, bear  the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to  the  benefit  of  the  parties  hereto  and  their  respective  successors  and  assigns.   Delivery  of  an  executed  counterpart  of  a  signature  page  of  this  Agreement  by  facsimile  or  electronic  mail  transmission shall be effective as delivery of a manually executed counterpart of this Agreement.         SECTION 9.07.  Severability.  Any provision of any Loan Document held to be invalid,  illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent  of  such  invalidity,  illegality  or  unenforceability without  affecting  the  validity,  legality  and  enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a  particular jurisdiction shall not invalidate such provision in any other jurisdiction.         SECTION 9.08.  Right  of  Setoff.   If  an  Event  of  Default  shall  have  occurred  and  be  continuing, each Lender Party and each of its Affiliates is hereby authorized at any time and from  time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general  or special, time or demand, provisional or final) at any time held and other obligations at any time  owing by such Lender Party or Affiliate to or for the credit or the account of the Borrowers or any  Loan  Guarantor  against  any  of  and  all  the  Secured  Obligations  held  by  such  Lender  Party,  irrespective of whether or not such Lender Party shall have made any demand under the Loan  Documents and although such obligations may be unmatured.  The applicable Lender Party shall  notify the Borrower Representative and the Administrative Agent of such set-off or application;  provided that any failure to give or any delay in giving such notice shall not affect the validity of  any such set-off or application under this Section.  The rights of each Lender Party under this  Section are in addition to other rights and remedies (including other rights of setoff) which such  Lender Party may have.                                         161    





 






         SECTION 9.09.  Governing Law; Jurisdiction; Consent to Service of Process.  (a) The  Loan Documents (other than those containing a contrary express choice of law provision) shall be  governed by and construed in accordance with the laws of the State of New York, without regard  to the conflict of laws principles thereof, but giving effect to Federal laws applicable to national  banks.               (b)   Each party hereto irrevocably and unconditionally submits, for itself and its        property, to the exclusive jurisdiction of any U.S. Federal or New York State court sitting        in the Borough of Manhattan, State of New York, in any action or proceeding arising out        of or relating to any Loan Documents, or for recognition or enforcement of any judgment,        and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims        in respect of any such action or proceeding may be heard and determined in such courts.         Each of the parties hereto agrees that a final judgment in any such action or proceeding        shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or        in  any  other  manner  provided  by  law.   Notwithstanding  the  foregoing,  nothing  in  this        Agreement  or  any  other  Loan  Document  shall  affect  any  right  that  the  Administrative        Agent or any other Lender Party may otherwise have to bring any action or proceeding in        the courts of any jurisdiction, to the extent that such action or proceeding relates to the        enforcement of rights with respect to the Collateral.               (c)   Each  party  hereto  irrevocably  and  unconditionally  waives,  to  the  fullest        extent it may legally and effectively do so, any objection which it may now or hereafter        have to the laying of venue of any suit, action or proceeding arising out of or relating to        this Agreement or any other Loan Document in any court referred to in paragraph (b) of        this Section.  Each of the parties hereto hereby irrevocably waives, to the fullest extent        permitted by law, the defense of an inconvenient forum to the maintenance of such action        or proceeding in any such court.               (d)   Each party to this Agreement irrevocably consents to service of process in        the manner provided for notices in Section 9.01.  Nothing in this Agreement or any other        Loan Document will affect the right of any party to this Agreement to serve process in any        other manner permitted by law.         SECTION 9.10.  WAIVER  OF  JURY  TRIAL.   EACH  PARTY  HERETO  HEREBY  WAIVES, TO THE FULLEST EXTENT PERMITTED BY REQUIREMENTS OF LAW, ANY  RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY  OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER  LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY  (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY  HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY  OTHER  PARTY  HAS  REPRESENTED,  EXPRESSLY  OR  OTHERWISE,  THAT  SUCH  OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE  FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES  HERETO  HAVE  BEEN  INDUCED  TO  ENTER  INTO  THIS  AGREEMENT  BY,  AMONG  OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.                                          162    





 






         SECTION 9.11.  Headings.  Article and Section headings and the Table of Contents used  herein are for convenience of reference only, are not part of this Agreement and shall not affect  the construction of, or be taken into consideration in interpreting, this Agreement.         SECTION 9.12.  Confidentiality.   Each  of  the  Lender  Parties  agrees  to  maintain  the  confidentiality of the Information (as defined below), except that Information may be disclosed  (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal  counsel  and  other  advisors,  in  each  case  on  a  confidential  basis  (it  being  understood  that  the  disclosing  Lender  Party  shall  be  responsible  for  the  foregoing  persons’  compliance  with  this  paragraph); (b) to the extent requested by any bank or other regulatory authority having jurisdiction  (including any self-regulatory organization having or claiming to have jurisdiction) or oversight  or  in  connection  with  any  pledge  or  assignment  to  a  Federal  Reserve  Bank  or  central  bank  permitted  by  Section  9.04(e);  (c)  to  the  extent  required  by  Requirements  of  Law  or  by  any  subpoena or similar legal process (it being understood that the applicable Lender Party, to the  extent permitted by Requirements of Law, shall inform the Borrower Representative reasonably  promptly thereof and provide the Borrower Representative a reasonable opportunity to apply for  and obtain a court order to protect the confidentiality of the relevant information); (d) to any other  party to this Agreement; (e) in connection with the exercise of any remedies hereunder or any suit,  action or proceeding relating to this Agreement or any other Loan Document or the enforcement  of rights hereunder or thereunder; (f) subject to an agreement containing provisions the same as,  or substantially similar to, those of this Section, to (i) any assignee of or Participant in, or any  prospective assignee of or Participant in, any of its rights or obligations under this Agreement, (ii)  any  actual  or  prospective  counterparty  (or  its  advisors)  to  any  swap  or  derivative  transaction  relating to the Loan Parties and their obligations or (iii) any insurer of risks hereunder (and any  such Person may disclose such Information to its and its Affiliates’ directors, officers, employees  and agents, including accountants, legal counsel and other advisors (it being understood that the  Persons to whom such disclosure is made will agree to be bound by confidentiality obligations that  are the same as, or substantially similar to, the terms set forth in this Section)); (g) with the written  consent of the Borrower Representative; (h) to the extent such Information (i) becomes publicly  available other than as a result of a breach of this Section or (ii) becomes available to any Lender  Party on a non-confidential basis from a source other than the Borrowers or their representatives  which is not known by any such Person to be under a duty of confidentiality with respect to the  Information;  (i)  to  the  National  Association  of  Insurance  Commissioners  or  its  Securities  Valuation Office or, in each case, any similar organization or nationally recognized rating agency  that requires access to information about such Lender Party’s investment portfolio for purposes of  rating such investment portfolio, in each case with a request for confidentiality (it being understood  that any such organization or rating agency may elect not to agree with any such request, in which  case the disclosing Lender Party shall incur no obligation or liability if such organization or rating  agency does not maintain the confidentiality of such Information); or (j) subject to clause (d), in  connection with a legal action related to this Agreement (it being understood that the applicable  Lender  Party,  to  the  extent  permitted  by  Requirements  of  Law,  shall  inform  the  Borrower  Representative reasonably promptly thereof and provide the Borrower Representative a reasonable  opportunity  to  apply  for  and  obtain  a  court  order  to  protect  the  confidentiality  of  the  relevant  information).  For the purposes of this Section, “Information” means all confidential, proprietary  and  non-public  information  received  from  the  Borrowers  relating  to  the  Borrowers  or  their  business,  other  than  any  such  information  that  is  available  to  any  Lender  Party  on  a  non- confidential  basis  prior  to  disclosure  by  the  Borrowers.   Any  Person  required  to  maintain  the                                        163    





 






   confidentiality of Information as provided in this Section shall be considered to have complied  with its obligation to do so if such Person has exercised the same degree of care to maintain the  confidentiality  of  such  Information  as  such  Person would  accord  to  its  own  confidential  information.         EACH  LENDER  PARTY  ACKNOWLEDGES  THAT  INFORMATION  AS  DEFINED IN SECTION 9.12 FURNISHED TO IT PURSUANT TO THIS AGREEMENT  MAY  INCLUDE  MATERIAL  NON-PUBLIC  INFORMATION  CONCERNING  THE  COMPANY  AND  ITS  AFFILIATES  AND  THEIR  RELATED  PARTIES  OR  THEIR  RESPECTIVE  SECURITIES,  AND  CONFIRMS  THAT  IT  HAS  DEVELOPED  COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC  INFORMATION  AND  THAT  IT  WILL  HANDLE  SUCH  MATERIAL  NON-PUBLIC  INFORMATION       IN   ACCORDANCE       WITH    THOSE     PROCEDURES      AND  REQUIREMENTS  OF  LAW,  INCLUDING  FEDERAL  AND  STATE  SECURITIES  LAWS.         ALL  INFORMATION,  INCLUDING  REQUESTS  FOR  WAIVERS  AND  AMENDMENTS,  FURNISHED  BY  THE  BORROWERS  OR  THE  ADMINISTRATIVE  AGENT  PURSUANT  TO,  OR  IN  THE  COURSE  OF  ADMINISTERING,  THIS  AGREEMENT  WILL  BE  SYNDICATE-LEVEL  INFORMATION,  WHICH  MAY  CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE COMPANY, THE  LOAN  PARTIES  AND  THEIR  RELATED  PARTIES  OR  THEIR  RESPECTIVE  SECURITIES.   ACCORDINGLY,  EACH  LENDER  PARTY  HAS  IDENTIFIED  IN  ITS  ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE  INFORMATION  THAT  MAY  CONTAIN  MATERIAL  NON-PUBLIC  INFORMATION  IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND REQUIREMENTS  OF LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.         SECTION 9.13.  Several  Obligations;  Nonreliance;  Violation  of  Law.   The  respective  obligations of the Lenders hereunder are several and not joint and the failure of any Lender to  make any Loan or perform any of its obligations hereunder shall not relieve any other Lender from  any  of  its  obligations  hereunder.   Anything  contained  in  this  Agreement  to  the  contrary  notwithstanding, neither any Issuing Bank nor any Lender shall be obligated to extend credit to  the Borrowers in violation of any Requirement of Law.         SECTION 9.14.  Patriot Act.  The Administrative Agent and each Lender subject to the  Patriot Act hereby notifies each Loan Party that pursuant to the requirements of the Patriot Act, it  is  required  to  obtain,  verify,  and  record  information  that  identifies  each  Loan  Party  and  other  information that will allow the Administrative Agent and such Lender to identify each Loan Party  in accordance with the Patriot Act. The Borrower Representative hereby agrees to provide, and  cause  each  other  Loan  Party  to  provide,  such  information  promptly  upon  the  request  of  the  Administrative Agent or any Lender.  Each Lender subject to the Patriot Act acknowledges and  agrees that neither such Lender, nor any of its Affiliates, participants or assignees, may rely on the  Administrative Agent to carry out such Lender’s, Affiliate’s, participant’s or assignee’s customer  identification program, or other obligations required or imposed under or pursuant to the Patriot  Act  or  the  regulations  thereunder,  including  the  regulations  contained  in  31  CFR  103.121  (as  hereafter  amended  or  replaced,  the  “CIP  Regulations”),  or  any  other  Anti-Terrorism  Law,                                        164    





 






   including any programs involving any of the following items relating to or in connection with any  Loan Party, its Affiliates or its agents, this Agreement, the Loan Documents or the transactions  hereunder  or  contemplated  hereby:  (a)  any  identity verification  procedures,  (b)  any  record- keeping,  (c)  comparisons  with  government  lists,  (d)  customer  notices,  or  (e)  other  procedures  required under the CIP Regulations or such other law. Solely to the extent a Borrower qualifies as  a “legal entity customer” under the Beneficial Ownership Regulation, such Borrower shall furnish  to  the  Administrative  Agent  all  information  relating  to  such  Borrower’s  compliance  with  the  Beneficial Ownership Regulation as the Administrative Agent may reasonably request from time  to time.         SECTION 9.15.  Disclosure.   Each  Loan  Party  and  each  Lender  Party hereby  acknowledges and agrees that the Administrative Agent and/or its Affiliates from time to time may  hold investments in, make other loans to or have other relationships with any of the Loan Parties  and their respective Affiliates.         SECTION 9.16.  Appointment for Perfection.  Each Lender Party hereby appoints each  other Lender Party as its agent for the purpose of perfecting Liens, for the benefit of the Lender  Parties, in assets which, in accordance with Article 9 of the UCC or any other Requirement of Law  can be perfected only by possession.  Should any Lender Party (other than the Administrative  Agent) obtain possession of any such Collateral, such Lender Party shall notify the Administrative  Agent thereof, and, promptly upon the Administrative Agent’s request therefor shall deliver such  Collateral to the Administrative Agent or otherwise deal with such Collateral in accordance with  the Administrative Agent’s instructions.         SECTION 9.17.  Interest  Rate  Limitation.   Notwithstanding  anything  herein  to  the  contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and  other amounts which are treated as interest on such Loan under Requirements of Law (collectively,  the  “Charges”),  shall  exceed  the  maximum  lawful  rate  (the  “Maximum  Rate”)  which  may  be  contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance  with Requirements of Law, the rate of interest payable in respect of such Loan hereunder, together  with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent  lawful, the interest and Charges that would have been payable in respect of such Loan but were  not payable as a result of the operation of this Section shall be cumulated and the interest and  Charges payable to such Lender in respect of other Loans or periods shall be increased (but not  above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at  the  Federal  Funds  Effective  Rate  to  the  date  of  repayment,  shall  have  been  received  by  such  Lender.         SECTION 9.18.  WAIVERS  OF  FARM  CREDIT  RIGHTS.   THE  BORROWERS  ACKNOWLEDGE  AND  AGREE  THAT  THEY  HAVE  BEEN  REPRESENTED  BY  LEGAL  COUNSEL  AND  THAT  THEY  HAVE  REVIEWED  ALL  RIGHTS  THAT  THEY  MAY  OTHERWISE  BE  ENTITLED  TO  WITH  RESPECT  TO  THIS  AGREEMENT  AND  THE  OTHER LOAN DOCUMENTS UNDER THE SECTIONS OF THE AGRICULTURAL CREDIT  ACT OF 1987 DESIGNATED AS 12 U.S.C. SECTIONS 2199 THROUGH 2202E AND THE  IMPLEMENTING FARM CREDIT ADMINISTRATION REGULATIONS AS SET FORTH IN  12  C.F.R.  SECTIONS  617.7000  THROUGH  617.7630  (INCLUDING  THOSE  PROVISIONS  WHICH AFFORD THE BORROWERS CERTAIN RIGHTS AND IMPOSE ON THE LENDER                                        165    





 






   PARTIES CERTAIN DUTIES WITH RESPECT TO THE COLLECTION OF ANY AMOUNTS  OWING HEREUNDER OR THE FORECLOSURE OF THE SECURITY INTEREST OF THE  ADMINISTRATIVE  AGENT  ON  THE  COLLATERAL,  OR  WHICH  REQUIRE  THE  ADMINISTRATIVE AGENT OR ANY OTHER LENDER PARTY TO DISCLOSE TO THE  BORROWERS THE NATURE OF ANY SUCH RIGHTS OR DUTIES), AND THAT THEY  KNOWINGLY,  VOLUNTARILY,  INTENTIONALLY  AND  IRREVOCABLY  WAIVE  ANY  AND  ALL  SUCH  RIGHTS.   NOTHING  CONTAINED  IN  THIS  SECTION  NOR  THE  DELIVERY TO THE BORROWERS OF ANY SUMMARY OF ANY RIGHTS UNDER, OR  ANY NOTICE PURSUANT TO, THE AGRICULTURAL CREDIT ACT OF 1987 SHALL IN  ANY WAY BE DEEMED TO BE, OR BE CONSTRUED TO IN ANY WAY INDICATE, THE  DETERMINATION  OR  AGREEMENT  BY  THE  BORROWERS,  THE  ADMINISTRATIVE  AGENT OR ANY OTHER LENDER PARTY THAT THE AGRICULTURAL CREDIT ACT OF  1987, OR ANY RIGHTS THEREUNDER, ARE OR WILL IN FACT BE APPLICABLE TO THE  BORROWERS,  THE  LOANS  OR  THE  LOAN  DOCUMENTS.Bank  Equity  Interests.   Loans  hereunder shall be made on a non-patronage basis.  Each Farm Credit System Institution that is a  Lender may from time to time, in its discretion reserve, sell participations on a non-patronage  basis.  Each party hereto acknowledges that the Farm Credit System Institutions have a statutory  first  Lien  on  all  Equity  Interests  (the  “Bank  Equity  Interests”)  in  any  Farm  Credit  System  Institution which is a Lender that any Borrower may now own or hereafter acquire, which statutory  Lien shall be for each applicable Farm Credit System Institution’s sole and exclusive benefit and  such Bank Equity Interests shall not constitute or form a part of the Collateral.         SECTION 9.20.  Amendment  and  Restatement  of  Original  Credit  Agreement;  Confirmation of Existing Obligations.  (a) On the Effective Date, (i) the Original Credit Agreement  shall be amended and restated in its entirety pursuant to the terms of this Agreement, (ii) each of  the commitments of the Original Lenders under the Original Credit Agreement shall be terminated  and, to the extent that such Original Lenders constitute Lenders hereunder, shall be replaced with  their respective Commitments hereunder and (iii) all loans and other amounts owing under the  Original  Credit  Agreement  shall  be  repaid  as  provided  in  Section  4.01(q).   The  parties  hereto  acknowledge and agree that this Agreement and the other Loan Documents do not constitute a  novation or termination of the “Obligations” (as defined in the Original Credit Agreement) that  are outstanding immediately prior to the Effective Date and (ii) the Liens and security interests as  granted under the applicable Collateral Documents securing payment of all Obligations hereunder  and under the other Loan Documents are in all respects continuing and in full force and effect and  are reaffirmed hereby.                 (b)   On and after the Effective Date, (i) all references to the Original Credit          Agreement or the Credit Agreement in the Loan Documents (other than this Agreement)          shall be deemed to refer to the Original Credit Agreement as amended and restated by          this Agreement, (ii) all references to any section (or subsection) of the Original Credit          Agreement or the Credit Agreement in any  Loan Document (but not herein) shall be          amended to become, mutatis mutandis, references to the corresponding provisions of this          Agreement and (iii) except as the context otherwise provides, on or after the Effective          Date, all references to this Agreement herein (including for purposes of indemnification          and  reimbursement  of  fees)  shall  be  deemed  to  be  reference  to  the  Original  Credit          Agreement as amended and restated hereby.                                         166    





 






                 (c)   The  Lenders  hereby  acknowledge  that,  immediately  prior  to  the          occurrence of the Effective Date, Rabobank has  delivered notice of its resignation as          Administrative Agent and Collateral Agent under (and as defined in) the Original Credit          Agreement,  and  the  Lenders  hereby  appoint  CoBank  as  its  successor  to  act  as          Administrative Agent and Collateral Agent under this Agreement and all of the other          Loan Documents.                                     ARTICLE X                                                                            U.S. GUARANTY          SECTION 10.01.  Guaranty.  Each U.S. Loan Guarantor hereby agrees that it is jointly and  severally  liable  for,  and,  as  primary  obligor  and  not  merely  as  surety,  absolutely  and  unconditionally guarantees to the Lender Parties the prompt payment when due, whether at stated  maturity, upon acceleration or otherwise, and at all times thereafter, of the Secured Obligations  and all costs, expenses and other amounts that are required to be paid by the Borrowers pursuant  to Section 9.03 or any similar provision in any other Loan Document (such costs and expenses,  together  with  the  Secured  Obligations,  collectively  the  “Guaranteed  Obligations”).   Each  U.S.  Loan Guarantor further agrees that the Guaranteed Obligations may be extended or renewed in  whole or in part without notice to or further assent from it, and that it remains bound upon its  guarantee notwithstanding any such extension or renewal.  All terms of this U.S. Guaranty apply  to and may be enforced by or on behalf of any domestic or foreign branch or Affiliate of any  Lender Party that extended any portion of the Guaranteed Obligations.         SECTION 10.02.  Guaranty of Payment.  This U.S. Guaranty is a guaranty of payment and  not of collection.  Each U.S. Loan Guarantor waives any right to require any Lender Party to sue  any Borrower, any other U.S. Loan Guarantor, any other guarantor or any other Person obligated  for all or any part of the Guaranteed Obligations (each, an “Obligated Party”), or otherwise to  enforce its payment against any collateral securing all or any part of the Guaranteed Obligations.         SECTION 10.03.  No  Discharge  or  Diminishment  of  U.S.  Guaranty.   (a)  Except  as  otherwise  provided  for  herein,  the  obligations  of  each  U.S.  Loan  Guarantor  hereunder  are  unconditional and absolute and not subject to any reduction, limitation, impairment or termination  for any reason (other than the payment in full in cash of the Guaranteed Obligations), including:   (i)  any  claim  of  waiver,  release,  extension,  renewal,  settlement,  surrender,  alteration,  or  compromise  of  any  of  the  Guaranteed  Obligations,  by  operation  of  law  or  otherwise;  (ii)  any  change in the corporate existence, structure or ownership of any Borrower or any other guarantor  of or other Person liable for any of the Guaranteed Obligations; (iii) any insolvency, bankruptcy,  reorganization or other similar proceeding affecting any Obligated Party, or their assets or any  resulting release or discharge of any obligation of any Obligated Party; (iv) the existence of any  claim, setoff or other rights which any U.S. Loan Guarantor may have at any time against any  Obligated Party, any Lender Party, or any other Person, whether in connection herewith or in any  unrelated transactions; or (v) any law or regulation of any jurisdiction or any other event affecting  any term of a guaranteed obligation.               (b)   The obligations of each U.S. Loan Guarantor hereunder are not subject to        any defense or setoff, counterclaim, recoupment, or termination whatsoever by reason of                                        167    





 






         the  invalidity,  illegality,  or  unenforceability  of any  of  the  Guaranteed  Obligations  or        otherwise, or any Requirement of Law or regulation purporting to prohibit payment by any        Obligated Party, of the Guaranteed Obligations or any part thereof.               (c)   Further,  the  obligations  of  any  U.S.  Loan  Guarantor  hereunder  are  not        discharged or impaired or otherwise affected by:  (i) the failure of any Lender Party to        assert any claim or demand or to enforce any remedy with respect to all or any part of the        Guaranteed Obligations; (ii) any waiver or modification of or supplement to any provision        of any agreement relating to the Guaranteed Obligations; (iii) any release, non-perfection,        or invalidity of any indirect or direct security for the obligations of any Borrower for all or        any part of the Guaranteed Obligations or any obligations of any other guarantor of or other        Person liable for any of the Guaranteed Obligations; (iv) any action or failure to act by any        Lender Party with respect to any collateral securing any part of the Guaranteed Obligations;        or (v) any default, failure or delay, willful or otherwise, in the payment or performance of        any of the Guaranteed Obligations, or any other circumstance, act, omission or delay that        might in any manner or to any extent vary the risk of such U.S. Loan Guarantor or that        would otherwise operate as a discharge of any U.S. Loan Guarantor as a matter of law or        equity (other than the payment in full in cash of the Guaranteed Obligations).         SECTION 10.04.  Defenses Waived.  To the fullest extent permitted by Requirements of  Law, each U.S. Loan Guarantor hereby waives any defense based on or arising out of any defense  of  any  Borrower  or  any  U.S.  Loan  Guarantor  or  the  unenforceability  of  all  or  any  part  of  the  Guaranteed Obligations from any cause, or the cessation from any cause of the liability of any  Borrower or any U.S. Loan Guarantor, other than the payment in full in cash of the Guaranteed  Obligations.   Without  limiting  the  generality  of  the  foregoing,  each  U.S.  Loan  Guarantor  irrevocably  waives  acceptance  hereof,  presentment, demand,  protest  and,  to  the  fullest  extent  permitted by law, any notice not provided for herein, as well as any requirement that at any time  any  action  be  taken  by  any  Person  against  any  Obligated  Party,  or  any  other  Person.   The  Administrative Agent may, at its election, following the occurrence and during the continuance of  an Event of Default, foreclose on any Collateral held by it by one or more judicial or nonjudicial  sales, accept an assignment of any such Collateral in lieu of foreclosure or otherwise act or fail to  act with respect to any collateral securing all or a part of the Guaranteed Obligations, compromise  or  adjust  any  part  of  the  Guaranteed  Obligations,  make  any  other  accommodation  with  any  Obligated Party or exercise any other right or remedy available to it against any Obligated Party,  without affecting or impairing in any way the liability of such U.S. Loan Guarantor under this U.S.  Guaranty except to the extent the Guaranteed Obligations have been fully paid in cash.  To the  fullest extent permitted by Requirements of Law, each U.S. Loan Guarantor waives any defense  arising out of any such election even though that election may operate, pursuant to Requirements  of Law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy  of any U.S. Loan Guarantor against any Obligated Party or any security.         SECTION 10.05.  Rights of Subrogation.  No U.S. Loan Guarantor will assert any right,  claim or cause of  action, including, without limitation, a claim of subrogation, contribution or  indemnification that it has against any Obligated Party, or any Collateral, until the Loan Parties  and the U.S. Loan Guarantors have fully performed all their obligations to the Lender Parties and  no Obligation is outstanding.                                         168    





 






         SECTION 10.06.  Reinstatement; Stay of Acceleration.  If at any time any payment of any  portion of the Guaranteed Obligations is rescinded or must otherwise be restored or returned upon  the  insolvency,  bankruptcy,  or  reorganization  of  any  Borrower  or  otherwise,  each  U.S.  Loan  Guarantor’s obligations under this U.S. Guaranty with respect to that payment shall be reinstated  at such time as though the payment had not been made and whether or not the Lender Parties are  in  possession  of  this  U.S.  Guaranty.   If  acceleration  of  the  time  for  payment  of  any  of  the  Guaranteed  Obligations  is  stayed  upon  the  insolvency,  bankruptcy  or  reorganization  of  any  Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement  relating to the Guaranteed Obligations shall nonetheless be payable by the U.S. Loan Guarantors  forthwith on demand by the Lender Parties.         SECTION 10.07.  Information.  Each U.S. Loan Guarantor assumes all responsibility for  being and keeping itself informed of the Borrowers’ financial condition and assets, and of all other  circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature,  scope and extent of the risks that each U.S. Loan Guarantor assumes and incurs under this U.S.  Guaranty, and agrees that no Lender Party shall have any duty to advise any U.S. Loan Guarantor  of information known to it regarding those circumstances or risks.         SECTION 10.08.  Taxes.  All payments of the Guaranteed Obligations will be made by  each  U.S.  Loan  Guarantor  free  and  clear  of  and  without  deduction  or  withholding  for  any  Indemnified Taxes or Other Taxes; provided that if any U.S. Loan Guarantor shall be required to  deduct or withhold any Indemnified Taxes or Other Taxes from such payments, then (a) the sum  payable shall be increased as necessary so that after making all required deductions (including  deductions applicable to additional sums payable under this Section) each applicable Lender Party  receives an amount equal to the sum it would have received had no such deductions been made,  (b) such U.S. Loan Guarantor shall make such deductions and (iii) such U.S. Loan Guarantor shall  pay  the  full  amount  deducted  to  the  relevant  Governmental  Authority  in  accordance  with  Requirements of Law.         SECTION 10.09.  Maximum Liability.  The provisions of this U.S. Guaranty are severable,  and in any action or proceeding involving any state corporate law, or any state, Federal or foreign  bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if  the obligations of any U.S. Loan Guarantor under this U.S. Guaranty would otherwise be held or  determined to be avoidable, invalid or unenforceable on account of the amount of such U.S. Loan  Guarantor’s liability under this U.S. Guaranty, then, notwithstanding any other provision of this  U.S. Guaranty to the contrary, the amount of such liability shall, without any further action by the  U.S. Loan Guarantors or the Lender Parties, be automatically limited and reduced to the highest  amount that is valid and enforceable as determined in such action or proceeding (such highest  amount determined hereunder being the relevant U.S. Loan Guarantor’s “Maximum Liability”).   This Section with respect to the Maximum Liability of each U.S. Loan Guarantor is intended solely  to preserve the rights of the Lender Parties to the maximum extent not subject to avoidance under  Requirements of Law, and no U.S. Loan Guarantor nor any other Person or entity shall have any  right or claim under this Section with respect to such Maximum Liability, except to the extent  necessary  so  that  the  obligations  of  any  U.S.  Loan Guarantor  hereunder  shall  not  be  rendered  voidable  under  Requirements  of  Law.   Each  U.S.  Loan  Guarantor  agrees  that  the  Guaranteed  Obligations may at any time and from time to time exceed the Maximum Liability of each U.S.  Loan Guarantor without impairing this U.S. Guaranty or affecting the rights and remedies of the                                        169    





 






   Lender Parties hereunder; provided that nothing in this sentence shall be construed to increase any  U.S. Loan Guarantor’s obligations hereunder beyond its Maximum Liability.         SECTION 10.10.  Contribution.   In  the  event  any  U.S.  Loan  Guarantor  (a  “Paying  Guarantor”) shall make any payment or payments under this U.S. Guaranty or shall suffer any loss  as a result of any realization upon any Collateral granted by it to secure its obligations under this  U.S. Guaranty, each other U.S. Loan Guarantor (each a “Non-Paying Guarantor”) shall contribute  to  such  Paying  Guarantor  an  amount  equal  to  such  Non-Paying  Guarantor’s  “Applicable  Percentage” of such payment or payments made, or losses suffered, by such Paying Guarantor.   For purposes of this Article X, each Non-Paying Guarantor’s “Applicable Percentage” with respect  to any such payment or loss by a Paying Guarantor shall be determined as of the date on which  such  payment  or  loss  was  made  by  reference  to  the  ratio  of  (a)  such  Non-Paying  Guarantor’s  Maximum Liability as of such date (without giving effect to any right to receive, or obligation to  make, any contribution hereunder) or, if such Non-Paying Guarantor’s Maximum Liability has not  been determined, the aggregate amount of all monies received by such Non-Paying Guarantor from  the Borrowers after the Effective Date (whether by loan, capital infusion or by other means) to (b)  the aggregate Maximum Liability of all U.S. Loan Guarantors hereunder (including such Paying  Guarantor) as of such date (without giving effect to any right to receive, or obligation to make, any  contribution hereunder), or to the extent that a Maximum Liability has not been determined for  any  U.S.  Loan  Guarantor,  the  aggregate  amount  of  all  monies  received  by  such  U.S.  Loan  Guarantors from the Borrowers after the Effective Date (whether by loan, capital infusion or by  other means).  Nothing in this provision shall affect any U.S. Loan Guarantor’s several liability  for the entire amount of the Guaranteed Obligations (up to such U.S. Loan Guarantor’s Maximum  Liability).  Each of the U.S. Loan Guarantors covenants and agrees that its right to receive any  contribution  under  this  U.S.  Guaranty  from  a  Non-Paying  Guarantor  shall  be  subordinate  and  junior in right of payment to the payment in full in cash of the Guaranteed Obligations.  This  provision is for the benefit of both the Lender Parties and the U.S. Loan Guarantors and may be  enforced by any one, or more, or all of them in accordance with the terms hereof.         SECTION 10.11.  Liability Cumulative.  The liability of each U.S. Loan Party as a U.S.  Loan Guarantor under this Article X is in addition to and shall be cumulative with all liabilities of  each U.S. Loan Party to the Lender Parties under this Agreement and the other Loan Documents  to which such U.S. Loan Party is a party or in respect of any obligations or liabilities of the other  U.S.  Loan  Parties,  without  any  limitation  as  to  amount,  unless  the  instrument  or  agreement  evidencing or creating such other liability specifically provides to the contrary.         SECTION 10.12.  Common Enterprise.  The successful operation and condition of each of  the Loan Parties is dependent on the continued successful performance of the functions of the  group of the Loan Parties as a whole and the successful operation of each of the Loan Parties is  dependent on the successful performance and operation of each other Loan Party.  Each Loan Party  expects to derive benefit (and its board of directors or other governing body has determined that it  may  reasonably be expected to derive benefit),  directly  and indirectly, from (a) the successful  operations of each of the other Loan Parties and (b) the credit extended by the Lenders to the  Borrowers hereunder, both in their separate capacities and as members of the group of companies.   Each Loan Party has determined that execution, delivery, and performance of this Agreement and  any other Loan Documents to be executed by such Loan Party is within its purpose, will be of  direct and indirect benefit to such Loan Party, and is in its best interest.                                        170    





 






                                     ARTICLE XI                                                                  THE BORROWER REPRESENTATIVE          SECTION 11.01.  Appointment;  Nature  of  Relationship.   The  Company  is  hereby  appointed  by  each  of  the  Borrowers  as  its  contractual  representative  (herein  referred  to  as  the  “Borrower  Representative”)  hereunder  and  under  each  other  Loan  Document,  and  each  of  the  Borrowers  irrevocably  authorizes  the  Borrower  Representative  to  act  as  the  contractual  representative of such Borrower with the rights and duties expressly set forth herein and in the  other  Loan  Documents.   The  Borrower  Representative agrees  to  act  as  such  contractual  representative  upon  the  express  conditions  contained  in  this  Article  XI.   Additionally,  the  Borrowers hereby appoint the Borrower Representative as their agent to receive all of the proceeds  of the Loans in the Funding Account(s), at which time the Borrower Representative shall promptly  disburse such Loans to the appropriate Borrower.  None of the Lender Parties or their respective  officers,  directors,  agents  or  employees  shall  be  liable  to  the  Borrower  Representative  or  any  Borrower  for  any  action  taken  or  omitted  to  be  taken  by  the  Borrower  Representative  or  the  Borrowers pursuant to this Section 11.01.         SECTION 11.02.  Powers.  The Borrower Representative shall have and may exercise such  powers under the Loan Documents as are specifically delegated to the Borrower Representative  by the terms of each thereof, together with such powers as are reasonably incidental thereto.  The  Borrower Representative shall have no implied duties to the Borrowers, or any obligation to the  Lenders Parties to take any action thereunder except any action specifically provided by the Loan  Documents to be taken by the Borrower Representative.         SECTION 11.03.  Employment of Agents.  The Borrower Representative may execute any  of its duties as the Borrower Representative hereunder and under any other Loan Document by or  through authorized officers.         SECTION 11.04.  Notices.   Each  Borrower  shall  immediately  notify  the  Borrower  Representative of the occurrence of any Default or Event of Default hereunder referring to this  Agreement describing such Default or Event of Default and stating that such notice is a “notice of  default”.   In  the  event  that  the  Borrower  Representative  receives  such  a  notice,  the  Borrower  Representative shall give prompt notice thereof to the Administrative Agent and the other Lender  Parties.  Any notice provided to the Borrower Representative hereunder shall constitute notice to  each Borrower on the date received by the Borrower Representative.         SECTION 11.05.  Successor  Borrower  Representative.   Upon  prior  notice  to  the  Administrative Agent, the Borrower Representative may resign at any time, such resignation to be  effective  upon  the  appointment  of  a  successor  Borrower  Representative.   The  Administrative  Agent shall give prompt written notice of such resignation to the Lender Parties.         SECTION 11.06.  Execution  of  Loan  Documents;  Borrowing  Base  Certificate.   The  Borrowers  hereby  empower  and  authorize  the  Borrower  Representative,  on  behalf  of  the  Borrowers,  to  execute  and  deliver  to  the  Lender  Parties  the  Loan  Documents  and  all  related  agreements, certificates, documents, or instruments as shall be necessary or appropriate to effect  the  purposes  of  the  Loan  Documents,  including  without  limitation,  the  Borrowing  Base                                        171    





 






   Certificates and the Compliance Certificates.  Each Borrower agrees that any action taken by the  Borrower Representative or the Borrowers in accordance with the terms of this Agreement or the  other Loan Documents, and the exercise by the Borrower Representative of its powers set forth  therein or herein, together with such other powers that are reasonably incidental thereto, shall be  binding upon all of the Borrowers.         SECTION 11.07.  Reporting.   Each  Borrower  hereby  agrees  that  such  Borrower  shall  furnish  promptly  after  each  fiscal  month  (or  such  shorter  period  for  which  Borrowing  Base  Certificates shall be required pursuant to the terms hereof) to the Borrower Representative a copy  of its Borrowing Base Certificate (to the extent that a Borrowing Base Period is in effect) and any  other  certificate  or  report  required  hereunder  or  requested  by  the  Borrower  Representative  on  which  the  Borrower  Representative  shall  rely  to  prepare  the  Borrowing  Base  Certificates  and  Compliance Certificates required pursuant to the provisions of this Agreement.         SECTION 11.08.  Keepwell.  To the fullest extent permitted by applicable law, while any  Guaranteed  Obligations  are  outstanding  with  respect  to  a  transaction  under  a  Secured  Swap  Agreement, each ECP Loan Guarantor hereby jointly and severally absolutely and unconditionally  undertakes, for the benefit of each Supported Loan Guarantor and the holder(s) of such Guaranteed  Obligations, to provide such funds or other support as may be needed from time to time to enable  each  Supported  Loan  Guarantor  to  pay  such  Guaranteed  Obligations  with  respect  to  such  transaction and to pay such funds to the holder of such Guaranteed Obligations upon the demand  of  either  the  Supported  Loan  Guarantor  or  such  holder.   The  Loan  Guarantors  agree  that  this  Section constitutes a “keepwell, support, or other agreement” for the benefit of the Supported Loan  Guarantors for purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.         SECTION 11.09.  Acknowledgement  and  Consent  to  Bail-In  of  EEA  Financial  Institutions.  Notwithstanding anything to the  contrary in any  Loan Document or in any other  agreement, arrangement or understanding among any such parties, each party hereto acknowledges  that any liability of any EEA Financial Institution arising under any Loan Document, to the extent  such liability is unsecured, may be subject to the write-down and conversion powers of an EEA  Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:               (a)   the  application  of  any  Write-Down  and  Conversion  Powers  by  an  EEA        Resolution Authority to any such liabilities arising hereunder which may be payable to it        by any party hereto that is an EEA Financial Institution; and               (b)   the  effects  of  any  Bail-In  Action  on  any  such  liability,  including,  if        applicable:                     (i)   a reduction in full or in part or cancellation of any such liability;                     (ii)  a conversion of all, or a portion of, such liability into shares or other              instruments of ownership in such EEA Financial Institution, its parent undertaking,              or a bridge institution that may be issued to it or otherwise conferred on it, and that              such shares or other instruments of ownership will be accepted by it in lieu of any              rights with respect to any such liability under this Agreement or any other Loan              Document; or                                         172    





 






                     (iii)  the variation of the terms of such liability in connection with the  exercise  of  the  write-down  and  conversion  powers  of  any  EEA  Resolution  Authority.                                             173                





 






          IN  WITNESS  WHEREOF,  the  parties  hereto  have  caused this  Agreement  to  be  duly   executed by their respective authorized officers as of the day and year first above written.    BORROWERS:                             PILGRIM’S PRIDE CORPORATION                                              By:  /s/ Fabio Sandri                                                Name: Fabio Sandri                                               Title: Chief Financial Officer                                           TO-RICOS, LTD.                                           By:  /s/ Fabio Sandri                                                Name: Fabio Sandri                                               Title: Chief Financial Officer                                           TO-RICOS DISTRIBUTION, LTD.                                           By:  /s/ Fabio Sandri                                                Name: Fabio Sandri                                               Title: Chief Financial Officer                                                          FOURTH AMENDED AND RESTATED CREDIT AGREEMENT                                         S-1  





 






     OTHER LOAN PARTIES:                    PILGRIM’S PRIDE CORPORATION OF                                          WEST VIRGINIA, INC.                                              By:  /s/ Fabio Sandri                                                Name: Fabio Sandri                                               Title: Chief Financial Officer                                           JFC LLC                                           By:   /s/ Fabio Sandri                                                        Name: Fabio Sandri                                                Title: Chief Financial Officer                                           GOLD’N PLUMP POULTRY, LLC                                            By:   /s/ Fabio Sandri                                                        Name: Fabio Sandri                                                Title: Chief Financial Officer                                           GOLD’N PLUMP FARMS, LLC                                           By:   /s/ Fabio Sandri                                                        Name: Fabio Sandri                                                Title: Chief Financial Officer                                                                                                   FOURTH AMENDED AND RESTATED CREDIT AGREEMENT                                         S-2  





 






     AGENTS AND LENDERS:                COBANK, ACB,    as Administrative Agent,                                      Collateral Agent, Issuing Bank and Swingline                                      Lender                                        By:  /s/ James H. Matzat                                            Name: James H. Matzat                                           Title: Vice President                                                                                                                                                                               FOURTH AMENDED AND RESTATED CREDIT AGREEMENT                                         S-3  





 






                            COBANK   , FCB,  as a Lender    By:  /s/ James H. Matzat        Name: James H. Matzat       Title: Vice President                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   





 






                            BANK OF MONTREAL     , as a Lender   By:  /s/ Joan Murphy        Name: Joan Murphy       Title: Managing Director                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   





 






                            BARCLAYS BANK PLC     , as a Lender   By:  /s/ Ronnie Glenn        Name: Ronnie Glenn       Title:  Director                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   





 






                            COÖPERATIEVE RABOBANK U.A., NEW  YORK BRANCH, as a Lender   By:  /s/ Chris Grimes        Name: Chris Grimes       Title:  Executive Director    By:  /s/ Claire Laury        Name: Claire Laury       Title: Executive Director                                                                                                                                                                                                                                                                                                                                                                                                                                                               





 






                            ROYAL BANK OF CANADA      , as a Lender   By:  /s/ Nikhil Madhok        Name: Nikhil Madhok       Title:  Authorized Signatory                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   





 






                            U.S. BANK NATIONAL ASSOCIATION      , as a  Lender   By:  /s/ James D Pegues        Name: James D Pegues       Title:  Senior Vice President                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     





 






                            FARM CREDIT BANK OF TEXAS      , as a Lender   By:  /s/ Isaac E. Bennett        Name: Isaac E. Bennett       Title:  VP of Capital Markets                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      





 






                            Metropolitan Life Insurance Company , a New  York corporation   By: MetLife Investment Advisors, LLC, its  investment manager   By:  /s/ Kevin J. Harshberger        Name: Kevin J. Harshberger       Title:  Director                                                                                                                                                                                                                                                                                                                                                                                                                                                                             





 






                            ING CAPITAL   LLC , as a Lender   By:  /s/ Daniel W. Lamprecht        Name: Daniel W. Lamprecht       Title:  Managing Director    By:  /s/ Gonzalo Sanchez        Name: Gonzalo Sanchez       Title: Director                                                                                                                                                                                                                                                                                                                                                                                                                                                                             





 






                            DEUTSCHE BANK AG NEW YORK  BRANCH, as a Lender   By:  /s/ Marguerite Sutton        Name: Marguerite Sutton       Title:  Vice President    By:  /s/ Alicia Schug        Name: Alicia Schug       Title: Vice President                                                                                                                                                                                                                                                                                                                                                                                                                                                               





 






                            AMERICAN AG    CREDI T, PCA , as a Lender   By:  /s/ Daniel K. Hansen        Name: Daniel K. Hansen       Title:  Vice President                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   





 






                            BRANCH BANKING AND TRUST  COMPANY, as a Lender   By:  /s/ Erron Powers        Name: Erron Powers       Title:  Senior Vice President                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     





 






                            SUNTRUST BANK    , as a Lender   By:  /s/ Tesha Winslow        Name: Tesha Winslow       Title:  Director                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   





 






                            COMPEER FINANCIAL, FLCA      , as a Voting  Participant   By:  /s/ Dale A. Richardson        Name: Dale A. Richardson       Title:  Managing Director, Capital Markets                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     





 






                            AGFIRST FARM CREDIT BANK      , as a Voting  Participant   By:  /s/ Neda Beal        Name: Neda Beal       Title:  Vice President                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     





 






                            FARM CREDIT SERVICES OF AMERICA,  FLCA, as a Voting Participant   By:  /s/ Bruce Dean        Name: Bruce Dean       Title:  Vice President                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     





 






                            FARM CREDIT MID    -AMERICA, FLCA   , as a  Voting Participant   By:  /s/ Matthew Dixon        Name: Matthew Dixon       Title:  Credit Officer Capital Markets                                                                                                                                                                                                                                 





 






                            FCS COMMERCIAL FINANCE GROUP, FOR  AGCOUNTRY FARM CREDIT SERVICES,  FLCA, as a Voting Participant   By:  /s/ Eric Born        Name: Eric Born       Title:  Vice President                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       





 






                            GREENSTONE FARM CREDIT SERVICES,  FLCA, as a Voting Participant   By:  /s/ Curtis Flammini        Name: Curtis Flammini       Title:  VP of Capital Markets                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     





 






                            FARM CREDIT EAST, ACA    , as a Voting  Participant   By:  /s/ Kerri B. Sears        Name: Kerri B. Sears       Title:  Vice President                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     





 






                            FARM   CREDIT WEST   , FL CA,  as a Lender   By:  /s/ Rob Stornetta        Name: Rob Stornetta       Title:  Vice President                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   





 






                            NORTHWEST FARM CREDIT SERVICES,  FLCA, as a Voting Participant   By:  /s/ Paul Hadley        Name: Paul Hadley       Title:  Vice President